Labor & Employment Law Daily Wrongful death suit alleges Publix barred 70-year-old worker from wearing mask for coronavirus protection
Wednesday, December 2, 2020

Wrongful death suit alleges Publix barred 70-year-old worker from wearing mask for coronavirus protection

By Pamela Wolf, J.D.

According to the complaint, the grocery retailer prohibited workers from wearing masks or gloves because it “didn’t want customers to panic,” even though it knew infections at its stores were mounting.

The daughter of a 70-year-old employee who worked in the deli department at a Publix Super Market store in Miami Beach, Florida, has filed a wrongful death and negligence lawsuit in Florida state court against the grocery retailer on behalf of her father’s estate. Publix prohibited the now-deceased deli worker from wearing a mask at work, including on March 27 and 28, 2020, when he worked next to a coworker who exhibited COVID-19-like symptoms that included coughing, according to the complaint. The coworker, too, purportedly was prohibited by the employer from wearing a mask.

The plaintiff alleges that Publix knew or should have known that the employee’s coworker was exhibiting signs and symptoms consistent with COVID-19 before and/or soon after she arrived for work but nonetheless failed to send her home or ensure that she did not come to work. The employer also knew that she was not wearing a mask due to its own policy prohibiting personal protective equipment (PPE), but it did not order her to quarantine at home and did nothing to protect the 70-year-old working alongside her, the complaint states.

Predictable spread and death. The coworker soon thereafter tested positive for COVID-19, which was reported to Publix, the complaint alleges. On April 2, the employer allegedly sent the 70-year-old employee home from work and told him to self-isolate based on his contact with his infected coworker. On April 6, he was coughing and had a fever; on April 7 he was tested for COVID-19 with a positive result. On about April 10, he was hospitalized due to COVID-19 complications and died on April 28, with his family and friends forced to say their final “goodbyes” via Zoom, all alleged in the complaint.

No masks or gloves! Even in the face of mounting coronavirus infections across the state, Publix allegedly told one employee, “You can either work without a mask or go home.” Another employee purportedly reported, “We have been instructed to not wear gloves or masks in case we ‘incite panic’ on the floor. There is disciplinary action if we refuse to remove them.”

OSHA complaints. OSHA received complaints about Publix not permitting workers to wear masks or gloves at various Publix stores on March 19, 20, and 21, according to the complaint.

On March 23, OSHA purportedly notified Publix that it had received notice of alleged workplace hazards at a Tallahassee, Florida, store, not only that the grocer was not providing PPE despite the mounting COVID-19 crisis, but that Publix associates were “barred from wearing [gloves].” OSHA notes allegedly indicated that Publix had declined the employee’s request for a mask and gloves because it “didn’t want customers to panic.”

On March 24, OSHA notified Publix that it had received another notice of alleged workplace hazards at a store in Sandestin, Florida, the plaintiff contends. OSHA was reportedly informed that “[e]mployees are not allowed to wear their personally provided PPE in fear of contracting the COVID-19 virus.” The employee allegedly reported that the employer “prohibited [employees] from wearing face masks to protect themselves from breathing in the coronavirus from the hundreds of customers who com[e] to the store every day. The store provides no such protection for them.”

Safety manager responds. On April 3, Publix’s Senior Manager for safety allegedly admitted by email that the employer “previously prohibited associates from voluntarily wearing gloves or masks,” but attributed the prohibition to “CDC guidance asking people to refrain from using masks so that the supply chain could be preserved for health care workers.”

As the deceased employee’s daughter sees it, though, this statement at best “ignores the fact that many of PUBLIX’s employees could not socially distance in compliance with the CDC guidelines issued in March of 2020.” At worse, she called it “an after-the-fact excuse to cover up what PUBLIX’s employees were told by management: you cannot wear the masks, even if you bring your own, because it scares off the customers.”

In the same email the safety manager allegedly stated that Publix would only permit “select associates who are not normally required to wear a mask or gloves the option to [wear] these items for their personal comfort.” Two days earlier, he had purportedly written to OSHA’s Jacksonville office that Publix would begin permitting associates to wear masks/gloves “on a voluntary basis (where it does not impact food safety guidelines).”

Sales over safety. The supermarket’s concerns about losing business substantially increased the risk of COVID-19 exposure to each of its employees and particularly to the 70-year-old employee, according to the complaint. Despite the grocery retailers’ public statements, it lagged behind competitors, “knowingly endangering its employees and customers by exposing them to the very real risk that they would contract COVID-19 and die,” the plaintiff contends.

Several other large grocery stores at the time were permitting and encouraging employees to wear masks and other PPE, checking employees’ temperatures, and limiting the number of customers who could enter their store at one time, none of which Publix was doing at that time, the complaint alleges.

The employer intentionally chose to protect sales over the health and well-being of its employees and customers knowing that employees, especially a 70-year employee working next to a sick co-worker, would be exposed to COVID-19 and die, according to the complaint. The employer’s conduct served to provide false comfort to the employee that masks would not prove effective in preventing the spread of COVID-19 when it knew that just the opposite was true, his daughter contends. Notably, in March 2020, Publix knew that its employees across the state were becoming infected with COVID-19, the complaint alleges.

Damages. Among other things, the plaintiff is seeking damages for the 70-year-old employee’s four surviving children for lost support and services due to their father’s death, the value of lost parental companionship, instruction and guidance, and mental pain and suffering from the date of his death. The plaintiff is also asking for damages for loss of prospective net accumulations, which might have been reasonably expected but for the employee’s wrongful death, as well as medical and funeral expenses that were paid by his survivors.

“You have a company like Publix that profited greatly throughout the pandemic on the backs of employees like [the deceased], and you’d imagine the least they could do for those people who showed up at work was to protect their own employees,” said Stewart Tilghman Fox Bianchi & Cain Attorney Michael Levine, one the plaintiff’s attorneys. “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.”

The law firm said that “this story needs to be heard in court.” Not just because the employee’s children deserve justice, “but because corporate misconduct like this ought to be brought to light.”

The complaint, Gutierrez v. Publix Super Markets Inc., was filed in the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida; the Filing No. is 117103075 (E-Filed).

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