On April 28, 2020, 70-year-old Gerardo Gutierrez died of complications caused by COVID-19. According to court documents, in late March, Gutierrez worked side-by-side at the Publix deli counter with another employee who exhibited symptoms of the virus. The two employees were not wearing masks, which Publix banned its employees from using out of concerns that masked workers would frighten customers.

On April 2, Publix sent Gutierrez home with instructions to self-isolate because of coronavirus exposure. Eight days later, he was in the hospital, where he ultimately died. The victim's family filed a lawsuit against Publix for wrongful death. Publix responded with a motion to dismiss, arguing that the issue should be limited to a workers' compensation claim. On February 5, 2021, a Florida judge denied the company's motion.

The lawsuit still faces challenges, but the court's ruling may concern many other businesses across the country that could face similar claims. The fear over COVID-19 litigation is even causing some states to institute laws offering employers immunity. Such laws are not yet on the books in the Sunshine State.

Workers' Compensation Creates a Hurdle for COVID-19 Lawsuits

Workers' compensation programs exist in all fifty states. If an employee sustains injuries at work, they can recover workers' compensation benefits even if they accidentally caused themselves harm. In a personal injury lawsuit, the injured person has to show that their injury is the fault of another person who behaved negligently. Under workers’ comp, employees benefit from income replacement, coverage for medical care, and other costs caused by their injuries, even in cases where the harm is no one's fault or even their own fault.

In exchange for the benefits offered to injured workers without regard to fault, employers are protected from personal injury lawsuits and litigation-related costs. Also, employees cannot collect pain and suffering damages that often lead to high amounts of money in successful personal injury claims. The system prevents employees from filing personal injury lawsuits against their employers except in certain instances.

If an employee falls and hurts themselves at work, their recourse is workers' compensation. The same goes for carpal tunnel syndrome and cancer that is related to workplace exposure to toxins. Workers' compensation is often the only avenue employees have if they suffer harm at their job.

In the case of COVID-19, some believe that the workers' compensation system should be handling these claims. Gutierrez's attorneys are trying to carve out an exception based on Publix's actions in March when the plaintiff likely contracted the coronavirus.

Negligent is Not Enough

In Gutierrez's case, the plaintiff's attorneys recognize the workers' compensation issue. Still, they claim that there is an exception because the death resulted from negligent and intentional acts on his employer's part.

For the claim to overcome the necessary hurdles, the employer's behavior cannot just be negligent but rather must be grossly negligent or intentional. Florida Statute 440.11 states that injured workers can file claims against employers in cases where the employer knew their actions were virtually certain to result in an employee's injury or death, where the employee did not appreciate the risk because it was not obvious, and the employer concealed or misrepresented the risks. The standards are relatively difficult to meet because making it easy to overcome the restrictions would undermine the workers' compensation system's efficacy.

Is Preventing Mask-Wearing Grossly Negligent?

The fact that Publix actively prevented employees from wearing masks is essential to the case. According to attorneys for Gutierrez's estate, the prohibition on masks led the employees to believe that the masks were not necessary for their safety and that Publix should have known or did know that preventing mask-wearing would increase the risk of workers catching and spreading the virus.

Of course, when the plaintiff contracted the disease in late March, the information on mask effectiveness was still spotty. It was not until April 3, 2020, that the Centers for Disease Control and Prevention began promoting masks and distancing in public spaces. In fact, before that date, fears regarding a lack of protective gear for medical providers led health officials to downplay masks' role in preventing the virus's spread in the general population.

Whether Publix's conduct is grossly negligent remains to be seen, but clearly, the presiding judge believes there is enough evidence to give the plaintiff's case its day in court.

COVID-19 Lawsuits are Uncommon

With the virus raging throughout the nation and many workers feeling the need to put themselves in harm's way to continue to support themselves and their families, it may seem odd that there has not been a surge of COVID-19 cases. The workers' compensation issue is just one reason why the nation is not seeing many of these lawsuits.

Another issue is that some states have enacted laws shielding businesses from COVID-19 liability. So far, sixteen states have such laws on their books. Florida is not one of those states, but in 2021, that looks likely to change. The state legislature is working to pass a bill that will shield businesses from COVID-19 liability. Another 21 states are looking to add similar laws this year.

Florida's Proposed Protections for Businesses

State Republicans mainly favor the protections provided in proposed laws, which they claim will only apply when the employer makes a good faith effort to protect employees. Critics argue that it could lead to carelessness on the part of businesses that may fail to take reasonable precautions.

Some in the state also wonder whether the bill is necessary given the relatively modest number of such lawsuits. A recent tally of these cases showed that there are just over 50 currently pending claims. Of course, some fear those numbers will increase in the coming months. After all, the statute of limitations would allow for victims and families to file such lawsuits for four years from the date of injury. The proposed bill would cut that time to one year in addition to imposing other limits on liability.

COVID-19 and Laws About the Spread of Disease

Not only are businesses concerned about COVID-19 liability, but some citizens have faced criminal charges for their actions during the pandemic. Several people who intentionally spit or coughed on others even face terrorism charges. The laws are not entirely new concepts, and many states have statutes that criminalize knowingly exposing others to certain diseases, including HIV.

For most Americans, avoiding the spread of disease by taking reasonable and considerate steps will likely be enough to prevent any liability. However, businesses and individuals would benefit from remembering that there could be legal consequences for failing to use caution. Of course, with tragedies like the death that led to the Gutierrez case, taking steps to prevent the virus's spread is worthwhile even if states protect businesses from most potential litigation.