A lawsuit has been filed by the family of a Publix deli worker alleging he died of COVID because the Florida based company prohibited employees from wearing masks during the early days of the pandemic. The suit claims the deceased employee was not allowed to wear a mask because “Publix feared that mask-wearing employees would frighten customers.”
The family claims the man worked with another employee on March 27th and 28th “who was showing symptoms of infection, including coughing. When his coworker tested positive, [he] was sent home and told to self-isolate.”
12 days later he was hospitalized, and he died April 28th, according to the suit.
The family hopes to prove that Publix's mask ban was the cause of the deli workers death. They will have to prove gross negligence to have any chance of success with the suit.
Good luck with that.
First, they will need to convince the court that the place of employment was indeed the source of infection. Did the man self-isolate as instructed? Was he potentially exposed elsewhere in his off-duty hours? And the big question, the $64,000 query, was the employer negligent in the restriction of masks in the workplace?
Proving negligence, after all, is critical to this particular case and others like it around the country, thanks to that pesky little clause known as “exclusive remedy.” In Florida, as in most states, workplace injuries limit the liability for an employer to those benefits provided specifically within the workers' compensation system. According to WorkCompResearch.com, Florida Statute 440.11 defines that “An injured employee cannot sue his or her employer based on negligence or other tort liability if the employer has workers' compensation coverage except in cases of gross negligence or conduct rising to the level of a criminal act.”
And was Publix negligent? My money is on “No.” To justify that opinion, we need to go way back in time, all the way to last April 3, 2020. True, that seems like decades ago at this point, but trust me, it really has only been a little over 8 months. April 3, 2020 was the date the Centers for Disease Control (CDC) first recommended that citizens begin wearing cloth masks in the fight against COVID.
Prior to that time, if you will recall, the general public was discouraged from mask wearing. Initially we were told that masks needed to be preserved for front line workers, and they wanted to minimize shortages in the supply chain. Later, we were told that wearing masks would actually increase our risk of infection, since they would greatly increase the amount of touching to our faces. Way back in the early days of the pandemic, it seemed that the rules changed hourly, and that no one really knew what the right thing was to do.
Given that the CDC did not clarify the issue until April 3, one full week after the lawsuit alleges workplace exposure to COVID, the road to proving negligence will be a very rough one indeed. How can a company be negligent when they were following the advice currently in place from the “experts?”
There is no doubt that COVID, and the response of numerous jurisdictions to the threat it presents, has become a unique challenge for employers and the workers' compensation system. This is the first time that coverage and benefits have been ordered for a commonly communicable disease; one where the risk of infection is likely as strong or stronger outside the workplace as in it. So far, the number of legal challenges regarding employer negligence have not materialized at levels initially feared. There are fewer than 30 lawsuits nationwide claiming employer negligence related to employee COVID related deaths. Fewer than 100 suits claim COVID infections were the result of unsafe working conditions.
And anecdotally, the number of workplace COVID claims within workers' compensation has been manageable, and in many quarters less than expected.
While there are many tragic tales behind and around the COVID experience, negligence on the part of employers, especially in the early days of the pandemic, will not be one of them. Following prevailing guidelines, even those eventually thought to be wrong, does not equate to intentional negligence, and court cases like the one filed against Publix will be difficult to prove.
In the era of COVID, we can likely chalk up another solid point for the concept of exclusive remedy.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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