Family Sues Publix Over Deli Worker’s Death from COVID-19
The family of a 70-year-old man who died of COVID-19 complications is suing his employer after he was allegedly prohibited from wearing a face mask at work. Gerardo Gutierrez was employed at a Publix grocery store in Miami Beach, Florida when he was infected with coronavirus in early April. At that time, Publix had mask-wearing restrictions in place for workers in its deli, meat and seafood departments.
In a lawsuit filed on November 23, Gutierrez’s family alleges that the store’s mask policy led to his death. The suit also claims that social distancing was not possible in the deli department and that the father of four tested positive for COVID-19 after working with a sick colleague who was not sent home when she began showing symptoms. Publix instituted a policy that all employees must wear a face mask on April 20, weeks after other grocers had implemented similar policies.
“A company has a responsibility to do its best to provide a safe and healthy work environment,” said Heather Schaaf, Underwriting Director, Burns & Wilcox, Chicago, Illinois. “Prohibiting mask wearing could be perceived as not acting in the best interest of employees.”
The case is among a growing number of wrongful death suits being filed in the U.S.1 as the pandemic rages, providing a grim reminder for employers of the urgency to implement robust safety protocols and review relevant insurance policies. Business leaders are also looking closely at state liability shields2and Senate Bill 4317 (the SAFE TO WORK Act), a stalled U.S. Senate bill that would provide legal immunity for companies sued by employees for issues related to COVID-19.3
“If S.B. 4317 is passed it could definitely impact cases like the Gutierrez family’s,” Schaaf said.
Mismanagement and D&O Insurance coverage
Although Gutierrez’s death occurred during the early days of the pandemic in the region in which he worked, the state of Florida did recommend the wearing of face masks at the time he fell ill.
“Corporations can be deemed responsible for making employees aware of state and local regulations,” Schaaf said. “Failing to do so or follow such guidelines could result in lawsuits like the one filed against Publix.”
Those factors are of utmost importance when it comes to determining liability and how and whether a company’s insurance coverage applies to a given event. If mismanagement occurred, coverage could be available under a Directors & Officers (D&O) Insurance policy, which covers a company’s directors and officers in the event they are named in a lawsuit. These individuals are held to a certain standard of care, Schaaf said. “If they fail in their duty to meet that standard, they could be eligible to file a D&O Insurance claim,” she said.
For example, if a state mandated that employers provide personal protective equipment and a company chose not to implement this practice or did not enforce the policy consistently, a D&O Insurance claim for oversight or mismanagement coverage could be made, Schaaf said.