Their dad died after a COVID-19 outbreak at work. Utah has made it difficult for them to sue.

If Julio Hernandez didn’t contract the coronavirus at his job, then his children don’t know where he got it.

Hernandez stopped seeing his family when the pandemic began, said his son, Cesar Hernandez. The father still had to grocery shop, but other than that and a few other necessary errands, he left home only to go to his job at the Sportsman’s Warehouse distribution and e-commerce center in an industrial park in western Salt Lake City, the son said.

“I’m like 95% sure he got it at work,” Cesar Hernandez said, “because when I talked to him over the phone, he would tell me we had two or three people come up positive at Sportsman’s Warehouse.”

Actually, there were 14 cases of the coronavirus there from June 9 through July 13, according to the Salt Lake County Health Department. Julio Hernandez is the only known fatality.

(Photo courtesy Wendy Payan) Julio Hernandez died of COVID-19 on July 8, 2020, at Jordan Valley Medical Center. He was 56.

He died July 8 at Jordan Valley Medical Center. He was 56.

His children have complaints about what they say Sportsman’s Warehouse didn’t do to protect him. They also say the company owes his estate now.

Cesar Hernandez and his sister, Wendy Payan, say they have not heard from the company since their father died. They have not received a check for any wages or vacation time he’s owed.

If Julio Hernandez had a 401(k) or death benefits with Sportsman’s Warehouse, they haven’t received those either. The family took donations on GoFundMe to pay for his funeral and so Payan, who lost her job earlier in the pandemic, could travel from her home in Las Vegas to attend her father’s services and clean out his apartment.

No Sportsman’s Warehouse representatives returned The Salt Lake Tribune’s messages inquiring about Julio Hernandez or the outbreak at the Salt Lake City site. A letter on the company’s website from CEO Jon Barker said Sportsman’s Warehouse was protecting employees and customers by following guidelines from the Centers for Disease Control and Prevention.

If Julio Hernandez had suffered almost any other type of injury or death on the job, his family could seek damages in Utah courts. But a bill signed in May by Gov. Gary Herbert largely shields employers like Sportsman’s Warehouse from liability when someone contracts COVID-19 on their premises.

“That’s the problem with these immunity laws,” said Teneille Brown, a torts and health law professor at the University of Utah. “They really place the cost and the risk of opening the economy on private individuals.”

Hernandez family members could still file suit, Brown said, but they would have to overcome hurdles.

From war to pandemic

(Rick Egan | The Salt Lake Tribune) Sign on the door of Sportsman's Warehouse distribution center in west Salt Lake City, Monday, Aug. 10, 2020.

El Salvador was in the midst of its civil war when Julio Hernandez left there at age 22 with his wife and oldest child — Payan. The small family immigrated to the United States.

Julio Hernandez’s wife soon decided to return to El Salvador. He returned there for a visit, met another woman and Cesar was born. Cesar eventually joined his father and his sister in the United States.

After living in Arizona, Hernandez lived for 29 years in La Puente, Calif. He moved to Utah on Independence Day 2014 to be with a woman he was dating, Cesar Hernandez said. The relationship didn’t work out, but Julio Hernandez remained in Utah, living in West Valley City. He began working for Sportsman’s Warehouse soon after his move.

The Sportsman’s Warehouse website lists 105 stores across the country selling recreational and hunting and fishing merchandise. Company headquarters are in Midvale. The retailer fills online orders from the distribution and e-commerce center where Julio Hernandez worked.

When Emma Mota arrived at the west Salt Lake City facility in September of last year, Julio Hernandez was in receiving and trained new employees. Later, he moved to the department that helps fill and ship orders.

“He was always happy,” Mota said. “He always had jokes. He always was motivating people.”

(Rick Egan | The Salt Lake Tribune) Sign on the door of Sportsman's Warehouse distribution center in west Salt Lake City, Monday, Aug. 10, 2020.

When the pandemic began, management at the Sportsman’s Warehouse center staggered some shifts, checked employees for symptoms before beginning their shifts and told them to keep their distance from one another and to wipe down their workstations, Mota said. But, in June, the time when the Salt Lake County Health Department says the outbreak at the facility began, management said little about the employees who suddenly weren’t at work, Mota said.

“The company would never say anything to us,” Mota said. “It was just rumors that people would say” a missing employee had COVID-19.

“When Julio tested positive,” Mota added, “they didn’t say anything to anybody.”

Mota left Sportsman’s Warehouse to take a new job two days before Julio Hernandez died.

Cesar Hernandez, who moved to Utah after his father did, doesn’t believe lack of information was the only shortcoming at Sportsman’s Warehouse. He said his father told him management sometimes forgot to take temperatures or didn’t take them until his dad was well into his shift.

Precisely what Sportsman’s Warehouse did to protect employees would be critical if the Hernandez family wanted to sue. While SB3007, the bill passed in May, offers broad protections for employers and property owners, the statute says they can still be sued if they commit “willful misconduct,” “reckless infliction of harm” or “intentional infliction of harm.”

(Courtesy photo) Teneille Brown, a torts and health law professor at the University of Utah

Those would be high standards for a family to prove, said Brown, the law professor, even higher than the negligence a plaintiff would normally have to prove in a workplace injury case.

“They’d have to show,” Brown said, “the employer was more than just careless; they were reckless.”

The bill’s main sponsors, Sen. Kirk Cullimore, R-Sandy, was traveling with family last week and unavailable for an interview. The sponsor in the other chamber, Rep. Marc Roberts, R-Santaquin, did not return Tribune messages last week.

In debates on the bill during a legislative special session, Cullimore argued the bill was needed to protect employers from frivolous lawsuits as the economy opened.

“There have been a rash of businesses that are nervous about these claims,” Cullimore said, “and there have even been threats of these claims as the economy reconstitutes.”

(Rick Egan | The Salt Lake Tribune) Sen. Kirk Cullimore says a few words as elected officials and health workers team up to fight the coronavirus, in a news conference at the Utah State Capitol, Friday, March 20, 2020.

Brown said families like Julio Hernandez’s might be able to find some relief in the Utah Constitution. It has a provision guaranteeing access to courts. SB3007 probably violates that clause, Brown contends.

But that also means a plaintiff would have to wage an extra legal fight.

“Now you’re not just suing for wrongful death,” Brown said. “You have to mount this huge legal challenge to the constitutionality of the law.”

Brown sees one more problem for workers — proving they got sick at work. Sickness from a virus isn’t as cut and dried a workers’ compensation case as, for example, a forklift running over an employee on a loading dock.

“I’m certain [the employer] would challenge the causation,” Brown said, “and say you can’t prove he got sick at work.”

Saying goodbye

(Rick Egan | The Salt Lake Tribune) Sign on the door of Sportsman's Warehouse distribution center in west Salt Lake City, Monday, Aug. 10, 2020.

Julio Hernandez’s symptoms were slow to develop, his son said. They started June 26 with a sore throat and feeling tired. A fever and body chills arrived July 2.

The next day, Julio Hernandez’s rental property owner called Cesar Hernandez, saying his father wasn’t answering his door. Cesar Hernandez called and his dad answered. Julio Hernandez said he was having trouble breathing. The son called an ambulance.

Wendy Payan provided copies of her father’s medical records from Jordan Valley Hospital. An intake form noted that Julio Hernandez had not yet been tested for coronavirus, though his co-workers had been sick.

The 35-year-old Payan contracted the virus in March and recovered. She spoke by phone to staff at Jordan Valley Hospital shortly after her father arrived there, and they were optimistic he would survive. That changed when Julio Hernandez didn’t improve.

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Payan said she last spoke to her father on the Fourth of July. He couldn’t catch his breath, but he mumbled out that he loved Payan and that she had to take care of her three daughters.

“Basically, he told me goodbye,” Payan said. “And I told him don’t talk like that.”

Payan said she would sue if she could. Foremost, she wants other Sportsman’s Warehouse employees to be safe.

“They cannot return him back to me,” Payan said. “I just want other people to be safe and be aware this is really real. It’s really important the company take care of their employees.”

Cesar Hernandez stood outside the site where his father worked at lunchtime on a recent Saturday. Employees in groups of three or four were sitting on the grass between the sidewalk and the parking lot. Cesar Hernandez worried about them.

“My family went through this,” he said, “and I don’t want anyone else to go through this.”