The Florida Legislature is not quite as indifferent to the coronavirus pandemic as it might appear. Some members are actually talking about immunity. Unfortunately, it’s altogether the wrong kind.

The immunity they have in mind is protection for nursing homes and other businesses against being sued over COVID-19 illnesses and deaths.

One reason why that’s wrong is self-evident in the story we published Tuesday about a lawsuit against Publix Supermarkets over the death of Gerardo Gutierrez, who worked at one its stores in Miami Beach and died of COVID-19 after a co-worker had tested positive.

It’s unusual litigation in a significant respect. According to the complaint, Gutierrez, who was 70 and worked in the delicatessen section, wanted to wear a face mask but Publix prohibited him and other employees from doing so, even if they brought their own, lest it frighten customers.

That was in March, after the World Health Organization, the U.S. government and Florida Gov. Ron DeSantis had declared a public health emergency, and after the CDC had called for social distancing. However, it was before the CDC recommended universal mask-wearing to try to preserve limited supplies of masks and other personal protective equipment for health care workers.

At the time, however, according to attorneys for Gutierrez’s estate and his family, OSHA, the government’s workplace safety agency, was receiving complaints from employees of other Publix stores about being forbidden to wear masks. The suit also claims that rival grocers were “allowing and encouraging” employees to wear masks and other PPE, checking temperatures, and limiting the number of customers allowed inside at any one time.

On April 3, Gutierrez was told to go home and quarantine after a co-worker tested positive. The suit claims that co-worker had been allowed to work in proximity to him despite showing symptoms. On April 10, he was hospitalized. He died 18 days later.

This will probably be a rare case, in that it alleges more than passive negligence contributing to a death from COVID-19. But there may be others. There may be some where an employer ought to be held liable for even simple neglect. The Legislature should leave all such issues for the courts to decide.

That is also true of potential liability on the part of nursing homes and other long-term care facilities, which have been the largest source of COVID infections and deaths in Florida. According to the Florida Justice Association, a trial lawyers’ organization that opposes legal immunity, “Florida nursing homes have a documented history of lax infection preparedness that resulted in the coronavirus rapidly sweeping through Florida facilities…. It would put more lives at risk to provide additional immunity to negligent facilities.”

So far, there don’t seem to be very many COVID lawsuits, regardless of the source. According to the Justice Association, insurance carriers are denying most worker’s compensation claims for COVID death and illness.

The majority of COVID-related lawsuits, according Michael F. Levine, the Gutierrez family’s lawyer, are filed by businesses against insurance companies that have refused to pay claims for income lost on account of the coronavirus. Retailers and others who want immunity for themselves should think carefully about what they’re wishing for. The insurance lobby is usually the biggest on the block.

A problem with Florida’s Legislature is that campaign contributions and high-power lobbying leave it perpetually predisposed to make life easier for employers and harder for workers. That’s why the unemployment compensation system became a total disaster in the face of the coronavirus, and why most workers are likely to be denied worker’s compensation benefits for COVID-19 that they may have contracted on the job. There are exceptions for first responders, emergency medical technicians and law enforcement.

The way minds work in Tallahassee, immunity legislation likely would protect any business that followed state COVID guidelines. That would be a Catch-22. Florida is wide open to COVID-19 spread because of the governor’s misplaced belief in so-called herd immunity.

Florida’s pathetically inadequate worker’s compensation law leaves most employees to fend for themselves with a job-related illness. That’s on account of a wicked change the Legislature made to the law in 2003:

“An injury or disease caused by exposure to a toxic substance, including, but not limited to fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.”

That presumes the harm occurred off the job unless the employees — or their survivors — can overcome a very high burden of proof. The First District Court of Appeal, which hears all worker’s compensation appeals, set an ominous precedent for COVID cases when it denied two toxic mold claims — one of them over a worker’s death — despite the near-certainty that they were infected on their jobs.

In a caring society, a state’s legislature would amend that to require worker’s compensation coverage for employees suffering from contagious diseases that most likely affected them in close quarters, like packing plants, or heavily traveled public places such as supermarkets. The presumption should be in their favor.

Even limiting that to declared emergency epidemics would be better than the status quo.

That’s what Florida ought to be hearing from its Legislature, but isn’t.

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Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Dan Sweeney, Steve Bousquet and Editor-in-Chief Julie Anderson.

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