POWDER KEG: ISSUES WHEN CONSIDERING A WORKPLACE FIREARMS POLICY
According to the Occupational Safety & Health Administration (“OSHA”), nearly two million American workers report having been victims of workplace violence each year. In fact, according to the Bureau of Labor Statistics, homicide is the fifth-leading cause of workplace fatalities in the U.S., accounting for 8% of all fatal on-the-job injuries. In recent years, tragedies around the country have focused employers’ attention on workplace violence, especially those involving firearms.
However, nearly half of all states now have laws addressing the rights of employees to possess firearms on or near their employers’ property. Accordingly, employers diligently attempting to fulfill their obligation to provide a safe workplace are navigating increasingly complex waters when attempting to craft (or revise) workplace violence policies.
Risks for Employers
Obviously, there are many practical and humanitarian reasons that prudent employers would want to enact policies with the goal of preventing workplace violence, but there are also good legal reasons. As a general rule, there are no laws explicitly creating a duty on employers to prevent workplace violence. However, the Occupational Safety & Health Act, which regulates workplace health and safety, imposes a general requirement on every employer to provide its employees with a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. Although this requirement is open-ended, employers found to be in violation may be cited by OSHA; and thus, liability can also be somewhat open-ended.
There are also state-level laws that could create risks for employers. Generally, employees can collect workers’ compensation benefits for injuries arising out of their employment. This could conceivably include an instance of violence in the workplace, creating workers’ compensation eligibility for injured employees. Finally, an employer could face tort claims from a third-party victim of violence occurring on the employers’ property.
“Guns at Work” Laws
With the goal of protecting an individual’s right to bear arms, many states (22 at last count) have enacted some type of law addressing firearms at work. The scope of these laws varies, however, in how much they restrict an employer. Some laws, such as those Florida, actively contain anti-discrimination provisions that make it unlawful to discharge an employee on the basis that the employee chooses to exercise his/her right to bear arms. Similarly, the Indiana law forbids an employer from asking employees or applicants whether they own a firearm unless the use or transportation of a firearm is relevant to the employment.
Most state laws do not reach as far as these and simply address the presence of firearms on the employer’s property. By and large, these laws do not tend to authorize firearm owners to bring their weapons into the actual workplace. Rather, the majority of states to address the issue have passed what are known as “parking lot” laws. These laws prohibit an employer from interfering with an employee’s right to bring their firearm onto the employer’s ancillary property, such as a parking lot or garage, and secure it in a locked personal (not company-owned) vehicle – as long as that employee otherwise lawfully possesses and bears that firearm (including compliance with concealed carry laws).
Once on the employer’s property, the employee generally must keep the firearm hidden from plain view. Many of these laws also provide additional protection to employees by forbidding employers from searching vehicles on their premises for the presence of firearms, unless the search is conducted by law enforcement pursuant to a warrant, or the situation is such that a reasonable person could believe that accessing the vehicle is necessary to prevent an immediate threat to human life or safety.
There are exceptions, however, based on both law and a particular employer’s property characteristics. Parking lot laws often do not apply to employers located on property where other state or federal laws prohibit possession of firearms, such as schools. In Mississippi, for example, an employer can prohibit employees from storing firearms in their vehicle if access to the employer’s parking area is restricted by a security measure (e.g., a gate). Arizona has a similar exception; however, for the employer to be allowed to prohibit firearm possession, it must provide temporary secure storage for an employee to place their firearm. Most states provide civil and criminal immunity to employers that comply with their “guns at work” laws.
Best Practices for an Appropriate Policy
The best practice for employers remains establishing a written, zero-tolerance policy on violence prevention. A strong system for reporting incidents and perceived risks should be the backbone of the policy, and employees should be trained on how to report problems. They should also be taught how to recognize potential risk factors and, unfortunately, how to react should the worst happen and violence erupt.
If your state has a “guns at work” law, there is no “one size fits all” approach to integrating those requirements into your workplace violence policy. Remember that, as a general rule, parking lot laws usually only authorize employees to store firearms in a locked personal vehicle. An employer should include provisions in its firearms policy that spell out exactly where firearms are allowed on the employer’s property. This should not extend beyond the requirements of the “guns at work” law in your state; in other words, avoid inadvertently expanding the area where firearms may be carried (for example, into the building or other areas of a campus that are not the parking lot). If the resources are available, consider controlling access to the parking area and/or monitoring it with a guard or video system.
What You Should Do
With tragedies in the news with seeming regularity, more focus than ever is being placed on preventing violence wherever it may occur, including the workplace. However, “parking lot” and other “guns at work” laws can limit the steps that employers feel they need to take to keep their employees safe. Consult competent employment counsel to research specific requirements of your state to avoid igniting the “powder keg” of potential conflicts. Even employers in states currently without these laws, such as West Virginia, should be familiar enough with these laws’ most common requirements to plan ahead and keep best practices in mind as they will likely only continue to spread.