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Family sues Publix after store worker dies from COVID-19

The lawsuit alleges that Publix banned employees from wearing face coverings at the start of the pandemic, when Gerardo Gutierrez became ill.
Florida, Fort Myers, Publix, supermarket Entrance
The lawsuit claims that at the start of the pandemic, Publix prohibited employees from wearing face masks and gloves despite the Centers for Disease Control and Prevention urging people to social distance.Jeff Greenberg / Getty Images
/ Source: NBC News

The family of a Publix employee who died after contracting the coronavirus alleges in a lawsuit that the supermarket company banned workers from wearing face masks at the start of the pandemic.

Gerardo Gutierrez, who worked in the deli department of the Miami Beach grocery store, died on April 28 from COVID-19 complications, according to a suit filed Monday. The suit says the 70-year-old became ill after an employee he worked with tested positive for the virus.

Michael Levine, a lawyer representing Gutierrez's four children, said in a statement that the death was "completely preventable."

The lawsuit claims that at the start of the pandemic, Publix prohibited employees from wearing face masks and gloves despite the Centers for Disease Control and Prevention urging people to social distance.

The lawsuit points out that for many workers at the grocery store, social distancing was not possible.

One employee was told that they could either "work without a mask or go home," the suit states. Another was allegedly told that they could not wear masks or gloves because it would "incite panic" with customers.

"Publix was more concerned with protecting its sales and profits fabricating the excuse that customers would be 'turned off' by employees wearing masks," the lawsuit says. "Publix 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, such as Gerardo Gutierrez, would be exposed to COVID-19 and die."

A message on Publix’s website states that the company did not issue a mask requirement until April 20, after Gutierrez became ill.

At the time the message was posted, Publix told the Tampa Bay Times that it was initially following the CDC's guidelines which discouraged the use of face coverings in public.

“We have been, and will continue to be, keenly focused on intensive, ongoing protective measures in all our stores,” Publix spokeswoman Maria Brous told the outlet at that time.

According to the lawsuit, an employee at the store started showing signs of COVID-19 in late March but was not sent home until after testing positive for the virus. Gutierrez was then asked to self-isolate at home because of his close contact with the worker.

Days later, he developed a fever and cough, the lawsuit says. On April 10, he was admitted to the hospital and on April 28, doctors called Gutierrez's family and told them that his condition had worsened.

"Family and friends gathered by Zoom to say their goodbyes, unable to hold his hand or give him one last hug. Later that day, Gerardo Gutierrez died as a result of complications caused by COVID-19," the lawsuit states.

Ariane Gutierrez, his daughter, said that Publix banning employees from wearing masks was a "careless decision."

“The sudden passing of our father has been a devastating loss to our family," she said in a statement. "He was a very kind, loving and hardworking man that is greatly missed by many. He was truly loved by the people in his life."

She said in a phone interview Tuesday that prior to her father's death, he had expressed concern about the company prohibiting the use of masks and was shocked that his employer wouldn't allow it. Levine said Gutierrez trusted that the company would protect its employees.

“Knowing he wasn’t allowed to wear it to go to work was extremely disturbing," Ariane said. "The fact that you just don’t have the right or the option to protect yourself during a national, world-wide pandemic is just unbelievably shocking."

She said the family still struggles with the loss and they hope to gather for a memorial service when it's safe to do so.

“It’s not an easy thing to get past," she said. "I think about it every day and I cry almost every night about it.”

Levine accused the supermarket company of choosing "profits over the safety of its employees."

"These employees, including Gerardo Gutierrez, continued to show up at work to help our communities. The least Publix could have done was allow employees to exercise their personal freedom and protect themselves from the spread of the virus,” he said in a statement.

The family is seeking monetary damages.

Publix did not respond to emails and phone calls requesting comment Tuesday.

This story first appeared on NBCNews.com.