Lawsuit by Publix worker’s children: Company’s mask policies led to his COVID-19 death

Early in the COVID-19 pandemic, Publix didn’t allow workers in its deli, meat and seafood departments to wear facial protection. A lawsuit filed in Miami-Dade on Monday blames that prohibition for the death of a father of four who worked at a South Beach Publix.

The lawsuit says that with no masks and no way to social distance in the deli department of the Sunset Harbour Publix, Gerardo Gutierrez was helpless to prevent catching COVID-19 from a worker and dying in April. Gutierrez was 70.

In a statement released through attorney Michael Levine of Stewart Tilghman Fox Bianchi & Cain, Gutierrez’s daughter Ariane Gutierrez said, “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.”

Publix did not respond to a request for comment Monday afternoon.

No Mask to Some Masks to Must Wear Mask

Publix’s policy on its employees wearing facial protection went from “don’t do” to “must do” over a matter of weeks.

Publix began installing protective plexiglass at its checkout lanes and customer service counters late in March, but employees told the Miami Herald that store managers discouraged even gloves as the world went into lockdown. Three Publix workers at a North Florida store filed an OSHA complaint when they weren’t allowed to wear masks. The chain said at the time that it was following CDC guidelines on personal protection.

On March 31, it relented to the pressure from its labor and allowed some employees the option of wearing personal protection. But that “some” didn’t include workers in the deli, meat and seafood departments.

“While associates in most food preparation departments are already required to wear gloves, masks are not allowed, as wearing a facemask is not best practice for the prevention of foodborne illnesses,” the PublixHelps Twitter account replied to a concerned customer.

Again citing the CDC’s change in stance on masks, Publix announced on April 20 that all employees must wear a mask.

By that time, Gutierrez had been in the hospital 10 days.

Catching COVID-19

The lawsuit claims on March 27 and 28 in the deli department at 1920 West Ave., one of Gutierrez’s coworkers began showing signs of COVID-19 infection, including coughing. The suit faults Publix for not seeing she might be infected and sending her home, thus protecting Gutierrez, instead making her stay in a place where masks were prohibited and social distancing impossible.

After she tested positive, Gutierrez was sent home on April 2 to self-quarantine. He began feeling feverish with a cough on April 6. He tested positive on April 7 and went into the hospital on April 10.

A priest was called on April 28 for last rites.

“Family and friends gathered by Zoom to say their goodbyes, unable to hold his hand or give him one last hug,” the suit says.

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