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Family of dead Publix worker files lawsuit alleging grocery chain stopped him from wearing a mask

A Publix in Hutchinson Island, Fla., ahead of a hurricane. (Carolyn Van Houten/The Washington Post)

When Florida-based grocery chain Publix began requiring employees to wear masks in late April, it was too late for deli worker Gerardo Gutierrez.

By then, the 70-year-old father of four was already infected with the coronavirus and would die alone in a hospital eight days later. His family and friends said their goodbyes over Zoom.

In March, as the virus was spreading rapidly across the country, Gutierrez asked his employer whether he could wear a face covering at his South Beach store, but he was denied, alleges a lawsuit his daughter filed Monday in a Miami court on his behalf.

At least 131 grocery workers have died of covid-19, the disease the virus causes, according to the United Food and Commercial Workers International Union, which represents 900,000 grocery employees. The actual death toll is probably much higher because the group does not represent all chains, and firms do not always publicly share when workers succumb to the virus.

Most grocery stores were, however, encouraging employees to wear masks and other personal protective equipment when Publix wasn’t, the lawsuit alleges.

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“I offered to give him a mask,” Gutierrez’s daughter Ariane recalled in an interview with The Washington Post. “He said, ‘Publix isn’t letting their employees wear their masks. They’re worried about scaring the customers.’ ”

Publix did not respond to a request for comment from The Post or local news outlets about the lawsuit.

Gutierrez, a Cuban immigrant who loved visiting Florida’s sunny beaches and riding his scooter, his daughter said, was sent home from work on April 2 after a co-worker came to work while symptomatic in late March.

“I think for the sake of his children, he tried not to panic, but I know he was scared,” his daughter said.

Four days after he was told to quarantine, Gutierrez began to feel feverish and developed a cough. For more than two weeks, he fought for his life in the hospital. He died on April 28 from the virus that has now taken at least 259,000 lives in the United States.

If Publix workers were allowed to wear masks earlier, maybe Gutierrez’s death could have been avoided, said Michael Levine, an attorney for the family.

“If his co-worker is not wearing a mask and he’s not able to wear a mask, what do you think’s going to happen?” Levine asked. “This was inevitable.”

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Early in the pandemic, workers and customers alike complained to the Occupational Safety and Health Administration that Publix employees were not wearing protective equipment because managers were worried about panicking shoppers, according to public records acquired by Levine and reviewed by The Post.

Employees at a store in Palmetto Bay, Fla., could not “wear gloves or masks because of corporate claiming it will scare the customers,” according to a March 19 complaint filed to OSHA, the federal agency charged with upholding workplace safety.

“You can either work without a mask or go home,” a worker was told, according to the lawsuit.

From late March to the beginning of April, the company answered concerned messages on social media, telling people that “wearing a facemask is not best practice for the prevention of foodborne illnesses,” the Miami Herald reported. It then began saying that workers could wear masks but that it did not have the supply to provide them.

In April, the company told the Tampa Bay Times, which first reported on the lawsuit, that its stores were following the guidance by the Centers for Disease Control and Prevention. The federal agency began recommending on April 3 that the general public wear cloth face coverings in public settings where social distancing was not possible.

In an investigation, the Times reported that Publix lagged behind its competitors in taking public health precautions. Trader Joe’s began distributing masks to workers in early March, and Walmart, Kroger and Aldi started doing the same in early April, according to the companies’ websites.

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Months after Gutierrez’s death, his family is preparing for Thanksgiving without him, missing his patient ear and broad smile.

“The holidays are the times you spend with your family and you talk about things, about old times and good times and the future,” Ariane Gutierrez said. “He’s not there to be part of our lives anymore, so it’s an extremely somber time for us. It’s not a happy time.”

Abha Bhattarai and Christopher Ingraham contributed to this report.