Family of a Publix Employee Allegedly Not Allowed to Wear Mask Is Suing the Chain for His Death

Gerardo Gutierrez was already sick with a fever and cough when Publix, the Florida-based supermarket chain where he worked as a deli employee, began allowing all staff to wear face masks to work. Other grocery store chains, such as Kroger, had begun to source protective equipment and roll out mask-wearing protocols in the weeks prior, but Publix lagged behind. It was too late for Gutierrez, who passed away from COVID-19 complications in late April, several weeks after showing his first symptoms. Now, according to the Tampa Bay Times, his family is suing the supermarket chain for Gutierrez’s wrongful death.

According to a lawsuit filed by his family, and obtained by the Times, the 70-year-old father of four asked Publix for permission to wear a mask at the start of the COVID-19 pandemic, and the company declined. An April 30 report in the Times showed Publix lagging well behind other grocers in responding to the impending crisis, forcing staff to work unprotected from the potentially deadly virus. That report noted that at the time, nearly 70 Publix employees in Florida were documented as having tested positive for COVID-19. It’s likely the true number was higher then, and has only grown since.

While other grocery chains — far from perfect in their response to the crisis — provided face masks, installed sneeze guards (something Publix would do only later, and which fail to fully guard checkout stations), and capped the number of shoppers who could enter a store at one time (something Publix does not enforce across all locations), the grocery chain was more concerned with the comfort of shoppers. “Employees told the Times and the federal safety and health administration that Publix supervisors said mask use would cause shoppers to panic,” the periodical reports.

Gutierrez, described in a now-disabled memorial GoFundMe campaign as a “friendly, dedicated and charismatic person,” worked alongside a coworker on March 27 and 28 who was showing clear symptoms of COVID-19, according to the lawsuit filed by his family. At the time, according to the Times, the store’s no-mask policy prohibited all employees from wearing masks unless they obtained a doctor’s note. A few days after Gutierrez was exposed to his sick coworker, Publix announced on March 31 that some employees could “use surgical or dust masks but this did not include deli employees.” That meant that, while other employees were allowed to follow the safety precautions that should have been in place weeks earlier, Gutierrez was still exposed.

According to the lawsuit and the Times reporting, Gutierrez was sent home on April 2 when his coworker tested positive for COVID-19, and on April 6, Gutierrez began showing symptoms, too. That was the same day Publix started allowing all employees to wear masks. Three weeks later, a priest read Gutierrez his last rites, his children spoke to him one final time over Zoom, and he died, alone, in a hospital.

Now, Gutierrez’s four adult children are suing the supermarket chain for $30,000 in damages. “This is a case that needs to be prosecuted and that we need to push forward in our court system and shed light on what Publix was doing and why they were doing it,” the family’s attorney, Michael Levine, told the Times. “The fact that they would choose profits over employees is shameful and disappointing.”

That Publix neglected to protect employees until the last possible moment is a particularly egregious example of workers across the food industry being treated as disposable, collateral damage during the COVID-19 pandemic, but it is certainly not the only grocery chain that has put its staff at serious risk. Across the country, grocery store workers are on the front lines of the pandemic, unable to work from home, and often provided with paltry personal protective equipment and very limited sick leave.

As similar tragedies play out in other states, cases like the one brought by Gutierrez’s family may well set a precedent for how — or if — employers are held accountable when workers fall ill or die of complications brought on by COVID-19. Meredith Gaunce, a Florida-based lawyer specializing in employment law, told the Times “there is still a period of time where we could see these [wrongful death cases] on the rise… Some [attorneys] may want to see what happens with the Publix case first.”

Gaunce predicts these cases will face a number of hurdles, one being the challenge of proving that employees contracted the virus at work. Employers will surely argue that even when masks are provided, there is no way to completely mitigate risk. But even when the bare minimum safety precautions are taken, chain grocers like Publix are guilty of treating their staff as essential workers, while neglecting to enact the kind of sweeping protocol needed to keep those on the frontlines safe.

The extra weeks that it took Publix to equip its staff with masks should not be glazed over, or treated as an early hiccup in the chain’s response to the pandemic. Those extra hours, days, and weeks of exposure were, for employees like Gutierrez, the difference between life and death.