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Workplace Gun Policies: What Employers Need to Know Workplace Gun Policies: What Employers Need to Know

Workplace Gun Policies: What Employers Need to Know

Following the recent tragic events at the Indianapolis Fed Ex facility, my colleagues and I in Ice Miller’s Labor, Employment and Immigration group have fielded numerous questions regarding workplace safety issues. In a time where mass shootings are a sadly routine occurrence, employers face the twin challenges of maintaining a safe workplace for all employees and of maintaining a workplace in which employees feel safe.

From a legal perspective, employers face potential liability for harm to employees, customers and other visitors who suffer harm as a result of a workplace shooting. For example, while OSHA does not specifically regulate firearms in the workplace, its broad requirement to maintain a safe workplace certainly could be implicated in the event of an incident of workplace gun violence. Additionally, employers could be held liable for injuries and deaths involving non-employees and employees alike under state tort or worker’s compensation laws.

Most employers maintain policies addressing the presence of firearms at the workplace, as well as workplace violence policies that address violent and threatening conduct and statements. Especially in the immediate wake of high-profile shootings, employers often feel compelled to issue new policies and enforce new or existing policies more stringently. While such measures are often appropriate and necessary to ensure workplace safety and give shaken employees some peace of mind, it’s important that employers are aware of and account for workplace gun laws that exist in a number of states when revising policies or investigating workplace violence issues.
Workplace “Gun Rights” Laws

As a starting point, the Second Amendment of the United States Constitution does not guarantee private or public employees the right to possess firearms at work. Rights afforded under the Second Amendment apply only to government restrictions on gun ownership, use and possession, meaning they are inapplicable in the private-sector workplace. Moreover, the federal courts have not interpreted the Second Amendment to restrict public employers from prohibiting guns in the workplace. In Indiana, for example, guns are prohibited (with limited exceptions) in many public workplaces, including K-12 public schools, state courthouses and on State Capitol grounds.

However, while the Second Amendment may not be at issue, many states, including Illinois, Ohio and Indiana, have enacted laws that provide employees with the right to bring firearms to work under certain circumstances—usually only if stored in a locked vehicle, and sometimes only if the employee has a concealed carry permit. Some states also prohibit employers from requiring employees to disclose gun ownership or retaliating against employees for owning possessing or using guns (and ammunition) and/or require private businesses to post notices regarding gun restrictions on their premises.
Compliant and Effective Policies

First, before we dive into some specific considerations and tips for compliant and effective workplace violence and gun policies, I want to emphasize that safety always comes first. If you believe there is an imminent threat of violence to you or your employees, stop what you’re doing and call the police. There is nothing that prohibits an employer or other member of the public from seeking assistance from law enforcement in such circumstances.

With that out of the way, let’s talk about policies. As noted above, employers in Indiana and states with similar laws who wish to prohibit guns and ammunition on their premises should have clear policies addressing the issue that include any required state law carve-outs for guns and ammunition stored in locked vehicles (or otherwise). In states that prohibit such inquiries, absent the need to investigate a workplace violence issue, employers should not question applicants or employees about gun ownership, use, etc. Under Indiana law, for example, that would include not requiring employees to disclose whether they store guns in their vehicles.

As to workplace violence policies, language should specifically address and prohibit threatening statements (whether verbal or written) and actions in addition to actual acts of violence. In terms of policy enforcement, when it comes to issues other than imminent threats of violence, a measured approach is key. Often, employers will receive reports from a concerned employee that a coworker was talking about owning or using a gun. Here, the facts and context are key. In many cases this requires distinguishing between misconduct (such as direct or implicit threats of violence) and general workplace discussions of sensitive topics such as gun use and ownership that do not involve threatening statements.

For example, if an employee is overheard discussing his new gun purchase in the context of making threatening remarks about a supervisor, immediate and decisive action is necessary. Then, particularly in states that provide employment protections for gun owners, when making and documenting determinations about employment consequences, the focus should be on whether and to what extent the conduct violates your policy, not the fact of the employee’s lawful gun ownership. This will put the employer in a much stronger position to defend a potential claim under state workplace gun rights laws.

In contrast, if the reported comment at issue turns out to be nonthreatening—for example, two employees discussing plans for a hunting trip or a visit to the shooting range—the focus should be on communication rather than taking a disciplinary posture. (Note that some states specifically prohibit employers from disciplining or terminating employees for engaging in lawful off duty conduct, including hunting.)  Instead, the issue can be addressed by explaining the context of the discussion to the complaining employee and reassuring them there is no threat, while encouraging the other employees to avoid the topic of guns when the complaining employee is present. Again, the need for employees to feel safe from violence in the workplace is a key consideration, and short of requiring an unlawful disclosure or disciplining an employee for exercising protected rights, it is appropriate for employers to take reasonable measures to address this concern.
Final Thoughts

In addition to maintaining policies and practices that contemplate and comply with state law workplace "gun rights" protections, employers are well-advised to conduct a top-to-bottom review of workplace violence prevention measures and policies and consider whether changes or additions are necessary. Key measures include having counsel review key policies related to workplace violence safety, evaluating the physical security of your workplace (in consultation with a security expert if possible), upgrading employee communication methods, checking with your insurance broker to ensure appropriate coverages are in place and/or instituting an emergency response plan and training program for active shooter scenarios in consultation with law enforcement or other security experts.

For more information, please contact Manolis Boulukos or the Ice Miller Labor, Employment and Immigration attorney with whom you most frequently work. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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