Pavement's Advisory Board guides the magazine and website on industry trends, technical issues and topics of interest to the paving and pavement maintenance industry. Earlier this year several board members indicated contractors are concerned about what kind of policy they should institute concerning handguns in the workplace.
Because all states now allow concealed carry for guns, do employers need to allow their workers to carry guns in their buildings? On the worksite? Can employers prevent workers from carrying their guns even though the states allow it? And what, if any, is the liability to the company should a worker carry a gun and become involved in an incident? Conversely, what if the worker is prevented from carrying a gun and he is injured -- when carrying a weapon might have helped him
Pavement Maintenance & Reconstruction reached out to Justin Boron, an employment attorney with Freeman Mathis & Gary, who regularly advises employees on employee policy issues.
Q. Should employers allow employees to carry guns at work if they have a concealed carry permit?
A. At first blush, the question might seem like an easy one for employers to answer. Employers have a general duty to maintain a safe workplace, and for a variety of reasons they frequently take affirmative measures to fulfill that duty, particularly where there is a substantial risk of serious bodily injury. For example, on construction sites, employers require the use of hard hats and limit access to heavy equipment that could result in serious injury. Like heavy equipment, guns have the potential to cause death or serious physical injury, so it would seem that the easy answer would be ‘no,’ they shouldn’t allow them.
But the increasing prominence of mass shooting deaths and injuries has led to a debate about whether a solution lies with increased restrictions on access to firearms or whether, if in some instances, permitting properly licensed persons to possess guns might prevent unnecessary harm in places where violence is likely to occur.
You see this debate arising at schools, where there might be certain personnel authorized to be armed on school premises or in public buildings like courthouses, where judges are authorized to carry a firearm. The same discussion has arisen in workplaces as well. And it has left employers with a more difficult and nuanced decision than might be assumed, particularly in states that have passed legislation commonly referred to as “parking lot laws” or “trunk laws.”
It’s an issue that has legal, practical, and economic dimensions that employers should consider carefully.
Q. Can an employer legally ban all firearms in the workplace?
A. In some states, yes, and in some states, no. Like I just mentioned, more than 20 states have enacted laws that, with some exceptions, prohibit employers from banning employees from storing a firearm in their car in the employer’s parking lot. These “parking lot” laws are common in states in the South and the Midwest, but they also exist in some states in the West, including Alaska, Arizona, and Utah.
Each of these laws has its own nuances. For example, Florida law prohibits an employer from asking an employee about the presence of a firearm in a vehicle in the parking lot. Georgia law limits an employer’s right to search an employee’s car. Some states have anti-discrimination provisions that can hold an employer liable for discriminating against an employee or potential employee based on his or her disclosure of gun ownership. And some states require an employer to post certain notices about whether the employer permits or prohibits firearms in the workplace. Compliance also can be challenging for employers like construction companies that don’t have a traditional workplace or a “parking lot” and have many job sites.
As a result, an employer should consult with counsel on the issue before implementing a firearm policy for the workplace.
Q. Can an employer legally allow firearms in the workplace?
A. Generally, there is no clear, singular answer to this question either. The Occupational Health and Safety Act does not specifically address an employer’s obligations to prevent workplace violence. But what is referred to as the “general duty clause” requires employers to provide a safe work environment. In 2011, OSHA also issued a directive on incidents of workplace violence. It reiterated an employer’s responsibility to minimize the risk of “recognized hazards” in the workplace. But OSHA has refrained from providing bright line guidance on whether permitting firearms in the workplace would run afoul of the general duty clause.
Courts also have declined to interpret the OSH Act in a way that would forbid any policy allowing guns in any part of the workplace. For example, in Florida Retail Federation, Inc. v. Attorney General, Florida business owners argued that a Florida law requiring employers and certain business establishments to permit firearms in cars on their property should fall, in part, because it required businesses to violate the general duty clause in OSHA. The court declined to find that the general duty clause preempted the Florida law and deferred to the state legislature’s finding that allowing certain access to guns in the workplace is important to preserving a person’s interest in self-defense.
The Tennessee legislature has taken the most forthright measure to answer this question definitively. In 2018, it passed a law that expressly allows an employer to permit a licensed employee to carry concealed handguns on its property, and Tennessee’s version of OSHA states that it would not create an occupational safety and health hazard. Other states, such as Georgia, Idaho, Louisiana, North Dakota, and Texas, have laws that grant an employer immunity from civil or criminal liability involving firearms that employers are required to permit at work under state law.
On the other side of the issue, however, some states like New Jersey have right-to-carry laws that are so restrictive that the question of whether concealed firearms are permitted at the workplace is mostly academic, and it probably would not be practically realistic to have a policy allowing employees to carry a gun in the workplace without the employee being at risk of violating state law.
Q. What are the legal risks of permitting firearms in the workplace?
A. By allowing workers to carry concealed weapons, an employer is almost certainly increasing its risk for civil liability. To the extent a co-worker is harmed by a gun-related incident, an employer could be liable under a state’s workers’ compensation laws. If a third-party is harmed, the employer could be liable under theories of negligent hiring, supervision, or retention. Because firearms are capable of killing a person, the likely severity of the injury also would increase the risk of a high dollar judgment against an employer.
Q. What about extreme examples. Is there any justification for allowing employees with concealed-carry licenses to carry firearms when they are working in a particularly vulnerable circumstance, like a late-night job such as striping parking lots, where they are more likely to be at risk of becoming a victim of crime?
A. An employer could justify that decision, and it might not necessarily be illegal. But doing so would still likely increase an employer’s risk for civil liability. By authorizing an employee to be armed, the employer arguably is assuming a duty to provide armed security and to ensure that employees are carrying weapons lawfully and appropriately. If an employee unlawfully fires his or her weapon and hurts another employee or a bystander, or in some instances, even a person engaged in a criminal act, the employer could be liable. Similarly, if there is a shooting and an armed employee fails to stop the shooter, an injured person could argue that the employer assumed a duty to protect him or her by allowing employees to carry firearms and failed to reasonably do so.
Q. Could an employer be held liable to an employee if it refuses to permit concealed carry and the employee is injured in an incident in which they could have defended him or herself?
A. This is an interesting question, and it is not out of the realm of possibility that an aggressive plaintiff’s attorney might pursue this theory in a wrongful death case or mass shooting. But the short answer is that an employer would have strong defenses to such a claim. Absent some legal requirement to permit employees to carry concealed weapons at work, a court is unlikely to find that an employer’s duty to provide a safe workplace includes authorizing concealed carry of firearms, and it is unlikely to find that such a refusal caused a particular injury like a death from an active shooter.
That said, an employer could be liable for failing to take other measures to minimize the risk of recognized hazards involving stranger and co-worker violence. For example, if the company is aware of previous incidents involving crime or violence in the area, it could be liable for failing to provide security.
This scenario might arise at a late-night construction site or in isolated areas like a parking lot, where work is being performed. If there is a genuine concern about employee safety, the employer should consider implementing security measures. In the example of a late-night construction site, the employer could consider requesting the property owner to provide a security guard or provide one itself. However, by assuming this duty, the employer must carry it out in a reasonable way and should take care to ensure that it has hired professionals in security that meet their own regulatory requirements.
Other measures could include informing local law enforcement that there is a concern about criminal activity at or around the job site and setting procedures for employees to report concerns about potential safety threats.
Q. How does an employer minimize its risk for civil liability arising from firearm violence?
A. The employer must comply with state laws mentioned before. But to the extent state law permits it, an employer can limit its liability risk by adopting a workplace policy that forbids an employee from carrying firearms or other weapons in the workplace. If there are non-employees at the workplace, such as construction contractors, the company could include language in the contract to require conformity to its gun policy. In at-will employment states, courts have upheld such workplace restrictions. For example, in Pennsylvania, an appellate court in Stewart v. FedEx Express held that FedEx had the right to terminate the plaintiff for violating its policy forbidding employees from carrying firearms on company property and in company vehicles. As I noted before, an employer should consult counsel when developing its gun policy though.
Q. What should an employer’s policy be on firearms?
A. Ultimately, the employer must make a business decision about what its policy should be on firearms in the workplace. The decision should take into account multiple factors. The legal risks I’ve mentioned are a significant one. Other factors include the effect that the policy has on the employer’s liability or workers’ compensation insurance. Permitting guns in the workplace could result in higher premiums. The employer also should consider whether its workforce would tolerate certain employees carrying guns. Depending on the employer’s geographic location and workplace culture, a policy on either side could alienate some employees and affect recruiting efforts. Lastly, permitting firearms in the workplace is a serious decision that could have serious consequences, so the employer should carefully consider alternatives that could address safety issues before authorizing its employees to be armed at work.
Justin Boron is a partner in Freeman Mathis & Gary’s Philadelphia office. He is a member of the firm’s Labor and Employment national practice group. He regularly advises employers on employee policy issues and defends them in employment discrimination claims, wage and hour claims, FMLA and ADA claims, and disputes over the enforcement of non-compete, non-solicitation, and confidentiality agreements. He can be contacted at email@example.com.