A rare COVID-19 lawsuit claims a deli worker at Publix died of the disease because the company prohibited employees from wearing masks during the early weeks of the pandemic.
Gerardo Gutierrez, an employee in Miami Beach, wasn’t allowed to wear his mask back in March because Publix feared that mask-wearing employees would frighten customers, the lawsuit claims.
On March 27 and March 28, Gutierrez worked beside an employee who was showing symptoms of infection, including coughing. When his coworker tested positive, Gutierrez was sent home and told to self-isolate.
He was hospitalized April 10 and died April 28, the suit states. Publix did not respond to a request to comment on the case.
The family’s attorney intends to prove that Publix’s mask ban caused Gutierrez’s death, but experts say the case is unlikely to lead to a crush of lawsuits, even as COVID-19 numbers climb.
In Florida and across the nation, only a small number of employees are filing such suits, statistics show.
One reason is that workers’ compensation laws in most states are written to provide employees with quick access to lost pay and medical care but, in a tradeoff, prevent them from suing over the injury. Exceptions include situations in which a third party, and not the employer, caused the injury, as well as when an employer deliberately caused the injury.
In addition, establishing that workers contracted the virus while at work and not during off-hours, such as at a store or even in their own homes, is difficult, according to the law firm Gibson Dunn, headquartered in Los Angeles.
“In light of the risks of contraction virtually anywhere — from restaurants to elevators to mass transit — the employee’s ability to sufficiently identify the workplace as the source of exposure defies credulity in most circumstances,” the firm said in a blog posted on its website.
COVID-19-related litigation trackers compiled by employment law firms show that relatively few employees are suing their employers over contracting the virus compared to the 12.4 million cases recorded in the United States.
A tracker maintained by the firm Fisher Phillips shows that 29 COVID-19-related cases against employers claim negligence or wrongful death while only 51 cases claim infections stemmed from an unsafe workplace. In Florida, just one case alleged negligence or wrongful death and six alleged an unsafe workplace.
A disclaimer on the firm’s site states that its dataset should be considered “comprehensive but not exhaustive.”
A similar tracker by the firm Littler, based in San Francisco, counts 221 workplace safety cases nationwide and 15 in Florida.
Whether the Gutierrez family’s case will survive what their lawyer expects to be a rigorous defense by Publix remains to be seen.
Publix did not require employees to wear masks until April 20, said Michael E. Levine of Miami-based Stewart Tilghman Fox Bianchi & Cain P.A. The mandate followed reports of more than three dozen cases among employees at Publix stores.
Publix’ directive that its employees not wear masks came as the U.S. Centers for Disease Control and Prevention told healthy Americans not to wear masks unless they were showing symptoms. At that time, the public health agency feared that rising demand for masks would prevent frontline health workers from getting as many as they needed as infection rates climbed during the first wave of the pandemic.
It wasn’t until April 3 that the CDC recommended that everyone cover their faces in settings where 6 feet of distancing is difficult to maintain, including supermarkets.
Levine said Gutierrez’ case is unique because he wanted to wear a mask and the company wouldn’t allow it. “Publix was preventing employees from exercising their freedom of choice to wear a mask,” Levine said.
“What makes this case especially painful for his family is the callous decision that they made because they didn’t want to scare off customers,” he said.
The U.S. Occupational Safety and Health Administration investigated complaints about Publix stores in Palmetto Bay, Miami, Tallahassee, Destin and Miramar Beach about the ban on employees wearing personal protective equipment in late March.
On April 1, the company’s senior manager for safety told the CDC it would allow employees to wear masks voluntarily if it did not affect food safety guidelines.
Levine said his client won’t have to prove Gutierrez was infected at his workplace because he expected to present “a preponderance of evidence” — the standard civil suits used to assess liability — that “more likely than not, that’s where he got it.”
Pandemic-related litigation is still new, and Levine said he’s not aware of any similar suits in Florida that have been won by either employees or employers.
Businesses, however, are concerned about the prospects of such suits. The U.S. Chamber of Commerce and Senate Majority Leader Mitch McConnell have been pushing for legislation that would shield employers from liability for workers who get the virus. McConnell has sworn that such a law would have to be included in any new relief package enacted by Congress. No new relief package has emerged in months of negotiations.
Exposure at supermarkets has clearly helped spread the virus throughout society, Deborah Berkowitz, director of the nonprofit National Employment Law Project’s worker safety and health program, said by email on Monday.
And while worker’s compensation rules prohibit suits against employers “even if an employer is negligent,” some attorneys have been using novel approaches to hold employers accountable, she said.
“It’s a very hard lawsuit to win,” she said, “but (it’s) important that these lawsuits get filed to remind the public of how our essential workers were not protected as we all got to quarantine at home.”
©2020 Sun Sentinel (Fort Lauderdale, Fla.)