A 70-year-old deli worker at a Publix grocery store in Miami Beach wanted to wear a mask at the onset of the COVID-19 pandemic but wasn’t allowed, according to a wrongful-death lawsuit his family filed Monday.
Gerardo Gutierrez was already ill by the time Publix reversed its rule and let all of its employees don their own face coverings. On April 28, he died from complications caused by COVID-19, after “friends and family gathered by Zoom to say their goodbyes,” according to the complaint.
“That Publix chose profits over the safety of its employees is shameful,” said Michael Levine, an attorney who is representing the family, in a statement. Dax Bello is another lawyer involved in the suit against the Lakeland, Florida-based grocery chain, which has more than 1,200 locations across the southeastern United States.
“These employees, including Gerardo Gutierrez, continued to show up at work to help our communities,” Levine said. “The least Publix could have done was allow employees to exercise their personal freedom and protect themselves from the spread of the virus.”
The father of four adult children had worked near a person showing symptoms consistent with the novel coronavirus on March 27 and 28, when Publix stores were still telling employees they could only wear masks if they provided a doctor’s note, according to the Tampa Bay Times, which had reported on Publix’s response to the pandemic in April.
Gutierrez was told “he could not wear a mask despite the fact that he wanted to wear one,” according to the lawsuit. Already, multiple people had called the Occupational Safety and Health Administration to complain about Publix’s mask policy, the lawsuit adds, with one person alleging on March 19 that workers weren’t allowed to wear masks “because of corporate claiming it will scare the customers.”
Publix changed its mask policy by March 31 to allow some workers to wear disposable masks, but that policy still didn’t extend to people in the delis, and didn’t allow cloth masks, according to the Times.
At the time, surgical masks were in short supply. Kroger, a competitor, told employees they could wear reusable ones a week before Publix allowed the disposable coverings, according to the Times.
Gutierrez was sent home to isolate on April 2, after his co-worker tested positive, according to the lawsuit. He developed a cough and fever on the same day Publix started allowing all of its workers to wear reusable masks—April 6—and tested positive April 7, according to the Times. Publix didn’t require its employees to wear masks until April 20, according to the Times.
“The sudden passing of our father has been a devastating loss to our family. He was a very kind, loving and hardworking man that is greatly missed by many,” Ariane Gutierrez, his daughter, said in a statement. “He was truly loved by the people in his life. 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 didn’t immediately respond to VICE News’ request for comment, nor did the company provide a statement to the Times. However, a spokeswoman for Publix said in April that it was following public health guidelines, according to the Times.
“We have been, and will continue to be, keenly focused on intensive, ongoing protective measures in all our stores,” Publix spokeswoman Maria Brous said.
Indeed, the U.S. Centers for Disease Control and Prevention didn’t recommend that people wear face coverings in public spaces until April, and officials like U.S. Surgeon General Jerome Adams urged Americans that masks weren’t effective for the general public, but were otherwise very necessary for health care providers, in late February.