Publix accused of causing deli worker's COVID-19 death through policy against PPE

Publix Super Markets Inc. on Monday was hit with a lawsuit in Miami-Dade Circuit Court after one of its employees died from the coronavirus.

And Stewart Tilghman Fox Bianchi & Cain shareholders Michael Levine and Dax Bello in Miami, who represent the deceased employee, Gerardo Gutierrez, said the takeaway of this case is the necessity of holding corporate defendants accountable for their alleged wrongdoing.

“You have a company like Publix that profited greatly throughout the pandemic on the backs of employees like Gerardo Gutierrez, and you’d imagine the least they could do for those people who showed up at work was to protect their own employees,” Levine said. “And then to learn they wouldn’t let their employees wear masks, because they thought it would scare off their customers. That’s just very troubling.”

In this case, the complaint alleges Publix had a previous employee policy instructing staff not to wear personal protective equipment without a doctor’s note so as not to “incite panic.”

It claims this policy was implemented despite rising cases of COVID-19 and the preventive measures imposed by politicians, such as Executive Order 20-51, which Florida Gov. Ron DeSantis entered directing the Florida Department of Health to issue a public health emergency.

The complaint is significant because many of the largest supermarket chains in the U.S. were slow to adopt measures to protect their employees and customers from catching or transmitting COVID-19, attorneys said.

But Levine said Publix, despite being routinely rated as a top place to work, was among the slowest, waiting until April to allow its employees to wear personal protective equipment.

Publix did not immediately respond to a request for comment.

Now, Levine is demanding a jury trial in circuit court to reimburse Gutierrez’s family for their medical costs, and damages for their loss of support and mental pain as a result of Gutierrez’s death.

According to the complaint, Gutierrez, who was 70 years old, worked in the deli department at a Miami Beach Publix store. Alongside Gutierrez at work, for at least two consecutive days near the end of March, was a woman who was coughing and exhibiting COVID-19 symptoms, the complaint said.

However, she was not allowed to wear a mask due to Publix’s policies prohibiting personal protective equipment and was allowed to continue to work. According to the complaint, the supermarket chain was notified that the employee, identified as “Jane Doe,” tested positive for the coronavirus.

Levine said then, a couple of days later, Publix told Gutierrez to quarantine after the supermarket chain performed contact tracing to detect other employees at risk who were in the proximity of Doe. Soon after, Gutierrez experienced a fever, tested positive for the COVID-19 and was hospitalized.

Near the end of April, Gutierrez’s family and friends gathered by Zoom to say their goodbyes, “unable to hold his hand or give him one last hug” before he died. And Levine said Publix could have prevented this case through proper measures to prevent the spread of the coronavirus.

“Publix’s own conduct through the contact tracing proves my case,” Levine said about the burden of proof necessary to pinpoint the person who spread the virus. “Why else would you send him home when he has worked along with this woman for two days in a row, who you now know had COVID-19 and was coughing on the job?”