Judge Carlos Lopez, of Florida’s 11th Judicial Circuit, recently denied a motion to dismiss in Gutierrez v. Publix. The case, which focuses on issues of workers’ compensation and wrongful death in connection with COVID-19, is likely to lay the groundwork for a number of similar cases involving workers who contracted the coronavirus on the job.
The Case Against Publix
The plaintiff alleges that the grocery store chain, Publix, breached its duty to protect employees from COVID-19. According to the plaintiff, Publix not only failed to take precautionary measures against the spread of the coronavirus but also prohibited employees from taking precautionary measures on their own, such as wearing gloves and masks.
The complaint claims that Publix’s refusal to facilitate safety measures led to the death of a 70-year-old employee, Gerardo Gutierrez. Gutierrez contracted COVID-19 from a fellow deli worker, who showed symptoms in late March. He passed away of COVID-19 on April 28, 2020, according to plaintiffs.
In March 2020, Publix announced on its website that the company was working with the Centers for Disease Control and Protection (CDC) and that it would “continue to focus on keeping [its] associates healthy.” Complaints filed with the Occupational Safety and Health Administration (OSHA), however, appear to tell a different story, with both customers and employees objecting to the lack of personal protective equipment, such as masks and gloves, on Publix employees in various Florida stores. One Tallahassee employee, for example, reported that employee requests for masks and gloves had been denied because Publix “didn’t want customers to panic.”
The complaint alleges that Publix knew Gutierrez’s coworker had symptoms of COVID-19. However, it claims, the company did not send her home or order her to quarantine, nor did it equip employees with masks or gloves. When the worker later tested positive for COVID-19, the company did tell Gutierrez to quarantine.
In its motion to dismiss, Publix claimed that the lawsuit would circumvent Florida’s workers’ compensation process. Publix argued that the family was required to file its claims in the Florida Division of Administrative Hearings. Judge Lopez disagreed, however, and denied the motion to dismiss.
Probable Cause in COVID-19 Cases
The question of the infection’s origin is at the center of this and other similar COVID-19 transmission cases. In Gutierrez, for example, the plaintiff alleges that Gutierrez worked alongside a coworker who had symptoms of COVID-19 and later tested positive. They also allege that Gutierrez himself later tested positive and ultimately died of the virus. The difficulty for the plaintiff in this case, and in similar cases, is demonstrating that those two facts are connected—in other words, that Gutierrez caught the coronavirus from the deli coworker who initially carried the infection.
COVID-19 has a long incubation period in which a person may be contagious but have no symptoms. Some people contract the virus and pass it to others while never developing symptoms themselves. This incubation period makes tracking down the actual source of a viral infection even more difficult.
In Gutierrez, however, proving that the deli coworker was the source of Mr. Gutierrez’s infection may not be necessary, as long as plaintiffs can show that it is more likely than not Mr. Gutierrez contracted COVID-19 as a result of exposure in the Publix store. Ultimately, it may not matter if the deli coworker, another employee, or a customer was the source of the virus that infected Mr. Gutierrez. This case may very well lean on tracing the infection back to Publix’s refusal either to provide PPE or to allow Mr. Gutierrez to use his own PPE when he requested permission.
Potential Effects on Future COVID-19 Cases
It remains to be seen how many workers and families have claims similar to that of the Gutierrez family, and how many will pursue those claims either before workers’ compensation boards or in court. As information comes to light about what companies knew about COVID-19 protection and when they knew it, more cases sounding in workers’ compensation or wrongful death may arise.
Causation is likely to remain a thorny question in many of these cases. However, it is unlikely that courts will require plaintiffs to prove beyond a reasonable doubt that they or their family member contracted COVID-19 from any particular source, particularly in jurisdictions that, like Florida, treat probable cause as a question of fact. Instead, plaintiffs may need to establish only that it was more likely than not they or their family member contracted the coronavirus as a result of the actions or inactions of an employer.