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Family of COVID-19 victim sues Publix over alleged mask policy at start of pandemic

Employees weren’t initially allowed to wear masks, lawsuit claims

Publix
Publix (Getty)

Calling the actions of the Publix supermarket chain before April 20 “shameful,” a Miami law firm Tuesday morning filed a wrongful death lawsuit against the supermarket giant for allegedly prohibiting employees from wearing protective masks and gloves during the first months of the COVID-19 pandemic.

The lawsuit, filed by Michael Levine and Dax Bello of Stewart Tilghman Fox Bianchi & Cain, claims 70-year-old deli worker Gerardo Gutierrez died on April 28 after contracting the virus from a co-worker at a Publix in Miami Beach, News 6 partner Florida Today reported.

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As COVID-19 began to spread throughout Florida, Publix made the decision to prohibit employees from wearing masks because of its belief that the masks would scare off customers, the lawsuit claims. “To find that Publix made this callous decision to say you can’t wear a mask is just shameful,” Levine said.

Publix spokespersons did not respond to a request for comment. Once Publix is officially served, their lawyers will have 20 days to respond to the lawsuit.

The lawsuit includes documented complaints from numerous Publix employees across Florida to the Occupational Safety and Health Administration (OSHA), contending that the chain was refusing to let employees wear gloves or masks to not scare customers. On at least two occasions in March, Publix was notified by OSHA that it had received notifications of workplace hazards concerning COVID-19, the lawsuit alleges.

On April 20, Publix announced it would mandate masks for its employees. The following is posted on the Publix website:

“As a result during this national emergency, we are requiring associates to wear face coverings, beginning April 20. Additionally, associates who are not normally required to wear gloves to voluntarily wear them, if they can safely perform their job duties. We are providing face coverings for all of our associates and plastic gloves for customer service and pharmacy associates, until our supplies are depleted. At that time, associates are required to provide their own face covering, and customer service and pharmacy associates may use their personal supply of gloves.”

By that time, according to the lawsuit, Gutierrez was already very ill. Gutierrez was sent home to self-quarantine on April 2 after it was confirmed that his co-worker, who had been exhibiting symptoms consistent with COVID-19, tested positive for the virus, the lawsuit says. Gutierrez soon became sick and tested positive as well. He was hospitalized on April 10 and on April 28 his family was notified that a priest had been called in to administer his last rites.

“(Our father) was a very kind, loving and hardworking man that is greatly missed by many,” said his daughter Ariane Gutierrez. “He was truly loved by the people in his life. Our family is in shock that Publix would prevent its employees from staying safe. Because of its careless decisions, our father is not here with us today.”

Levine said all four adult Gutierrez children had a very strong relationship with their father and are devastated.

“He was very much present in their lives and he worked hard his whole life to give his kids a better life,” Levine said, adding that he has heard countless loving anecdotes and rituals such as Gutierrez going to the bakery every Sunday morning for bread and pastries for the family. “With the holidays approaching, their pain is heightened that much more.”

Local attorney Jay Thakkar said he was familiar with the allegations raised against Publix and said he expects “the plaintiffs to depose key Publix executives to learn more about what went into that decision-making process.”

Publix has 1,258 locations throughout seven states including 814 stories in Florida. There are 20 locations in Brevard County.