56: Guns In The Workplace

Firearms in the workplace
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You have the right to deny all weapons on your company property, except where a parking lot storage law applies.

In episodes 42, 43 and 44 we learned about workplace safety, why it’s important, and how to create a safety program.

And even though there’s no federal law requiring you as an employer to PREVENT workplace violence, you do have a duty under the Occupational Safety and Health Act to MAINTAIN a safe workplace. How do you do that when it comes to guns? We’ll learn about it on today’s episode of SmallBiz Brainiac.

OSHA:

The Occupation Safety and Health Act specifically requires you to provide a workplace free from serious recognized hazards.

The Duties section of the Act says:

(a) Each employer —

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

One of the recognized hazards likely to cause death or serious physical harm is gun violence, and in an effort to prevent gun violence, most employers as part of their workplace anti-violence policy, prohibit employees from having a gun at work. Some employers actually have a separate firearms policy, which makes more sense if you are a multi-state employer, because, as you are well aware by now employment laws vary by state.

Parking Lot Storage laws:

So why do you need a separate firearms policy? Because there are “parking lot storage” laws give employees the right to keep firearms in their vehicles when parked on your property. Most of these laws require the vehicle to be locked and the gun be kept hidden away, out of plain site. These laws are designed to protect employees’ rights to posses and limit your ability to search their vehicles on your property as a means to preventing employment discrimination against gun owners. For example, in Florida you can’t ask employees about the presence of a firearm in a vehicle and you can’t search a private vehicle to determine whether it contains a firearm.

These parking lot storage laws don’t prevent you from banning the possession of a firearm anywhere else on your property, they simply give your employees the right to keep them in their vehicles, under certain conditions, and they give you immunity from injuries meaning you can allow weapons in the parking lot without violating the Occupational Safety and Health Act general duty clause.

What’s your policy:

The safe route from a liability standpoint is to ban all firearms on  your property if your state doesn’t have a parking lot storage law. If your state has a parking lot storage law, explain in your policy exactly what is allowed, under the law, and ban possession in the buildings. Make sure to properly post signs in compliance with state law.

If however you as the owner have a different attitude (such as mine) towards guns in the workplace, maybe you go this route:

Allow the legal carrying of a gun in the workplace but don’t allow open carry. So if it’s illegal for someone to carry concealed without a permit, don’t allow un-permitted people to have a gun at work.

I’m over simplifying it here. There’s a lot more to consider when creating your policy that we’ll learn about in a future episode.

Open and concealed carry laws:

Let’s clarify the different types of state firearm possession laws. There is open carry and there’s concealed carry.

And actually, several states don’t have laws banning open carry, thereby making it ok to do so. Which is actually the right way – you have the right to open carry unless it is specifically taken away by law. There are either 3 or 5 states that PROHIBIT open carry outright, but all other states either don’t disallow it, or they have some form of permit or license you can obtain so that you may carry openly.

Every state has a concealed carry permit option, but they are divided into two camps – shall issue and may issue. 40 sates are shall issue and 10 states are may issue. In both states you have to qualify for the permit but in the “may issue” states weather you get a permit or not depends on the discretion of the issuing authority. And this can vary from county to county or even city to city. Maryland allows you to apply for a permit but if you don’t have connections, you won’t most likely won’t get one.

Regardless, you have the right to deny all weapons on your company property, except where a parking lot storage law applies.

If you chose to allow employees to carry on your property outside of their vehicle then again, I’d ban open carry and focus on employees who want to carry concealed and ensure they are licensed, responsible and capable enough to carry. Your other employees will feel much better if they know you’ve done your due diligence by ensuring the people who do carry concealed at work are both licensed and have been vetted by you.

In fact, if you don’t have an explicitly posted sign against carry and one of your employees has a permit then they’re allowed to bring it to work. So without a policy you actually HAVE A POLICY, which is to allow whatever is lawful.

For example, Kansas and Minnesota have parking lot laws and if you don’t want your employees bringing guns into your building then you must post a conspicuous notice of the ban.

And in Tennessee, which DOES NOT have a parking lot law,  you have to post a notice probing possession of a weapon on the property in a prominent location including all entrances to the property or building where you want to prohibit possession.

If you don’t post then you’re allowing possession but you don’t know who is carrying; and if there ever were an incident with that person – let’s say you have to terminate them under contentious circumstances and he or she is a hothead, that’s something I would want to know.  So by implementing a policy you can allow those permitted employees to still carry but require them to tell you.

In either case, in your anti-violence or firearms policy don’t forget to include language that allows you to search vehicles, to the extent permitted by sate law. For example, in Florida you can’t ask employees about the presence of a firearm in their vehicle or search a private vehicle to see if they have one. And Georgia law prohibits you from searching employees’ locked, privately-owned vehicles unless the search is done by law enforcement pursuant to a valid search warrant; or the situation would lead a reasonable person to believe that accessing the vehicle is necessary to prevent an immediate threat to human health, life or safety.

NCAVAC:

If you ever do run into a situation with an employee who is carrying or has a firearm in their vehicle and you think there’s a threat you can call local law enforcement and ask them to contact the FBI’s National Center for the Analysis of Violent Crime (NCAVC), to conduct a threat assessment and render an opinion as to the potential for violence posed by your employee. If the threat is found to be credible, intervention strategies are provided to the requesting agency to lower the level of threat.

If you break any of these parking lot storage laws and terminate someone for having a firearm their vehicle then you’ll be open to wrongful termination and possibly civil damages, depending on the state.

Oh, the many joys of being an employer…

We’ll learn about anti-violence and firearm policies in the next episode as we are out of time for this one.

Summary:

You have a duty under the Occupational Safety and Health Act to maintain a safe workplace but “parking lot storage” laws give employees the right to keep firearms in their vehicles when parked on your property. So, if you are a multi-state employer and one of your states has a parking lot storage law, you should have a separate workplace anti-violence policy and firearms policy. In any case, I would either ban all weapons in the workplace, or ban open carry and allow concealed carry by licensed individuals but also make sure your policy requires those who do want to conceal carry to notify you of their decision.

About the author, Thomas

I have 20 of years insurance industry experience in C-level management, focusing on all aspects of workers compensation, risk management, loss control, employee benefits, HR, payroll and professional employer organization (“PEO”) operations. Currently, I am the owner and CEO of Humanly HR, and founder and host of SmallBiz Brainiac; a podcast providing employer intelligence to small business owners.

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