Gerardo Gutierrez, a 70-year old deli-worker employed by Publix grocery stores, died on April 28, 2020, from COVID-19. Sadly, Gerry, as his friends called him, died in a hospital – alone, with his family only able to bid goodbye via video call. Even more sadly, it's quite possible he didn’t need to die if, as his attorneys claim, Publix had acted prudently.
Mr. Gutierrez was allegedly exposed to COVID-19 by an infected co-worker who was working close by. But he was only made aware of her diagnosis when he was sent home from work several days later. Perhaps the saddest part of all was that even as other employers in the area were encouraging masking, Publix ostensibly forbade its workers to wear masks. They were allegedly more worried about panicking or losing customers than their employees' health -- or the complaints filed with the Occupational Health and Safety Commission. According to the complaint filed against the company, even the warnings made to Publix about their workplace policies had no effect. Publix continued outlawing masking – until after Mr. Gutierrez’s death.
“We have been instructed to not wear gloves or masks in case we ‘incite panic’ on the floor. There is disciplinary action if we refuse to remove them,” reported one worker, according to the complaint against Publix.
“You can either work without a mask or go home.”
From the Complaint
Mr. Gutierrez’s complaint against Publix seeks damages for intentional acts and negligence. Publix moved to dismiss the complaint. Why? The facts do not seem to be in much dispute. What is in contention is whether the Worker’s Compensation Act bars the action.
Worker’s Compensation and the Occupational Health and Safety Commission
Worker’s Compensation arose more than a century ago in the wake of outrageous behavior by employers, which put workers, at that time primarily immigrants, in harm’s way. During the early 1900s, recovery for traditional negligence or other tort cases was more theoretical than practical. Juries, made up of white men (women didn’t as yet even have the right to vote), were notoriously sympathetic to corporate defendants. Moreover, the plaintiff had to prove – more probably than not- that the defendant’s negligence or carelessness directly caused their harm, and if the plaintiff’s actions contributed to the injury -- by even 1%, the case was barred.
To allow for swifter and surer recovery, Workman’s Compensation Acts – (a form on “no-fault” insurance) were enacted to cover all injuries “arising out of or in the course of employment.” In exchange for relinquishing hefty awards for pain and suffering, workers would be almost automatically granted recovery for lost wages and out-of-pocket medical expenses through a streamlined administrative procedure. Proof of the employer’s negligence was not required, nor was contributory negligence by the worker a bar to recovery.
The system generally works. While the employer ends up paying more claims (at much lower amounts), employers can reduce the likelihood of claims by instituting better workplace safety practices.
Workmen’s Compensation during the COVID-19 Pandemic
Thus far, for example, in Minnesota, where some of the most significant COVID-19 workplace outbreaks occurred, 18,000 workers' compensation claims have been filed, claiming employees contracted COVID-19 on the job. About a third of these cases have been paid as of late February, although 935 claims brought by meat-packers have been denied, as employers claim the exposure occurred “off the job.” Resolution of these cases is pending.
Workmen’s Compensation should have been a panacea. But there are problems.
- For one, the losses are only for the employee. For example, damages to a spouse, such as “loss of consortium,” a “derivative” claim, cannot be brought. (Loss of consortium generally refers to the deprivation of the benefits from a family relationship due to the injuries resulting from the tortious action.)
- Secondly, under traditional negligence, the estate can bring an action on the part of the deceased. Not so in Worker’s Compensation. Should Mr. Gutierrez’s claim be barred by Worker’s Comp- the employer gets off without being held financially responsible.
That fact invites consideration of the lone exception, which would allow lawsuits for redress and compensation for a plaintiff’s pain and suffering: If the employer is found to have acted intentionally, the worker (or his estate) can sue under tort law.  Prevailing in tort actions is far easier today than 100 years ago, mainly because contributory negligence no longer bars recovery in most jurisdictions. If a plaintiff contributed to his/her harm, the damages are simply reduced proportionately by the amount of the contribution.
The cases, however, are not a slam-dunk. The injured party still has to prove the requisite elements of negligence - and intent. In the Gutierrez case, for example, the estate would have to prove, among other things, that Mr. Gutierrez contracted the disease while working on the job (i.e., from his co-worker). This does not seem to be an issue here. The real issue is, did the employer act “intentionally.”
The legal context of intentional
Legally speaking, “intention” is broader than merely a deliberate desire to cause a particular harm. Knowledge to a substantial - or “virtual” - certainty that harm will result is sufficient in the tort arena. And the knowledge of impending harm doesn’t even have to be the same harm that occurs, merely the intent to cause any bodily contact will do. 
So, the questions facing the court become:
- Did Publix intend or know to a virtual certainty that harm would befall Mr. Gutierrez if he weren’t masked?
- Did Publix have the requisite predicate for such knowledge just three weeks after COVID-19 made landfall in Florida?
“We have been, and will continue to be, keenly focused on intensive, ongoing protective measures in all our stores,” claims Publix by its lawyers.
Publix argued in their court filings that the intentional act exception wasn’t met because there was only an increased risk of harm that ensued from failure to mask, not a virtual certainty. Moreover, all employees needed to be harmed before the intentional tort exception would apply.
On February 5th, Judge Carlos Lopez ruled against Publix and in favor of the plaintiffs, allowing them to bypass the Worker’s Compensation system. The plaintiffs will still have to prove that the policy of no-mask wearing resulted in Mr. Gutierrez’s illness and that he was exposed on the job. Publix will surely deny these claims. Likely they will again argue that Worker’s Compensation should be the exclusive remedy (which in this instance means no payout).
To be sure, what happened to Mr. Gutierrez is not precisely the situation conjured by Worker’s Compensation Laws. While the plaintiff was indeed injured at work – the injury did not arise “in the course of his employment.” The actual reason for the harm, i.e., threats of job loss for failure to comply with a policy promoting unsafe conditions, are different than those generally contemplated by Worker’s Compensation (and more reminiscent of a claim for employment discrimination). Does this make the employer’s actions “intentional ?” The court seemed to think it did.
The case, which has largely flown under the legal radar, highlights the confusion reigning at the inception of this pandemic regarding public health responses and may serve as a warning for the next national health emergency. Recall that at the beginning of the pandemic, both the World Health Organization (WHO) and CDC warned againstmask-wearing. Although the CDC’S policy had changed by the time Mr. Gutierrez had contracted COVID-19, Publix’s claimed their refusal to allow masking was due to these earlier advisories. Perhaps then, the ultimate responsibility might be said to rest with the government (and the WHO), whose vacillating advice generated, at best, confusion.
It is easy to believe that corporate greed is a motivator of corporate sloth in safety. Indeed, fear of incendiary damage awards can be a potent deterrent to corporate misbehavior. Since large damages are unavailable in Worker’s Compensation cases, one might imagine that employers might feel freer to trespass on worker safety than on consumer safety.
And it is here that the system breaks down. For had Gerry Gutierrez been a customer, he would have been allowed to wear his mask – or been allowed to sue for negligence should he have been exposed to COVID-19 at the market. Is this case then, one “arising out of or in the course of employment,” or is Mr. Gutierrez’s employment status merely a convenient red-herring?
 In common law, a tort is a civil wrong that causes a claimant to suffer loss or harm, be it physical, mental, or economic (business-related).
 Garratt v. Dailey 279 P. 2d 1091 (Wash. 1955)