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Fla. supermarket chain blamed for worker's COVID-19 death, but lawsuits face long odds

By Ron Hurtibise, Sun Sentinel on

Published in Business News

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.

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