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Guns in the Workplace: Managing Your Business’ Risk

The debate over firearm regulation is as old as firearms themselves. Recently, the debate has been brought to the forefront because of the actions of mentally ill people in Colorado, Connecticut, Washington D.C., and Arizona, among other places. But how does firearm regulation affect you day to day as a business owner or employee in Washington? That is, what should you know about guns in the workplace?

What can your employees do lawfully with their guns?

Business owners and employees are subject to the general carry laws in Washington. These gun laws allow a person to open-carry (visible in a holster) in most places or conceal a pistol while in that person’s fixed place of business without a concealed pistol license (“CPL”). Obtaining a CPL expands a person’s ability to conceal a firearm outside the fixed place of business. But even with a CPL, in locations such as schools, jails, courtrooms, mental health facilities, and drinking establishments, carrying a firearm (even if not concealed) is prohibited.

Certain people do not need a CPL to conceal-carry, including law enforcement officers, on-duty members of the armed forces, firearm dealers, manufactures, repairers, etc. while conducting their usual course of business, members of shooting or gun collecting clubs, and members of organizations that purchase or receive pistols from the federal or state government. People are also exempt from the CPL requirement in certain circumstances, including generally when hunting and fishing, and when carrying an unloaded pistol in case or opaque wrapper. For traveling to and from work, firearms must be unloaded in a vehicle unless you have a CPL, and if left in a vehicle, firearms must be locked up and concealed from view.

No guns allowed

What can your business do to alter the rules for employees carrying guns?

Both public and private employers in Washington can adopt and enforce workplace rules restricting or prohibiting employees from possessing firearms at work, including those individuals with concealed carry licenses.

While Washington has no laws directly addressing firearms in the workplace, both Federal Law and Washington Law require employers to provide employees with a workplace free from recognized hazards that cause, or are likely to cause, serious injury or death (“the general duty clause”).

Only the 10th Circuit Federal Court, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, has made a determination as to whether gun-related workplace violence is a “recognized hazard” under the general duty clause. The 10th Circuit Court ruled that it is not a recognized hazard, therefore, an employer that allows firearms is not in violation the OSHA general duty clause.  OSHA’s website, guidelines, and citation history seem to support the holding that an employer’s failure to ban firearms in the workplace is not a violation of the general duty clause.

There is no relevant case law on Washington’s version of the general duty clause. Therefore, we cannot say for certain whether the Washington general duty clause would define gun-related workplace violence as a recognized hazard. The 10th Circuit’s decision would be persuasive authority, but it is not binding on Washington courts.

In a workplace where the risk of violence and serious personal injury are significant enough to be “recognized hazards,” the general duty clause would require the employer to take feasible steps to minimize those risks. An employer’s failure to implement feasible means of abating these hazards could result in an OSHA violation.

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Washington identifies the following industries as high-risk: Health care, Social services, Security services, Public administration, Education, Law enforcement, Retail trade, Public transportation, Accommodation and food services. And WISHA requires a workplace violence prevention plan in high-risk industries.

But some workers may have legitimate justifications for carrying a weapon. Employees may work late hours, live in remote areas, or transport valuables, among others. Washington employers have the freedom to address these justifications on a case-by-case basis.

For employers that are not concerned about particular justifications for an employee needing to carry a weapon, the potential liability of allowing weapons in the workplace likely weighs in favor of a ban or significant restriction by the business.

According to a study done in North Carolina, workplaces where guns were permitted were about 5 times as likely to experience a homicide as those where all weapons were prohibited. Pinkerton Consulting and Investigations estimates that the direct costs to employers in missed days of work and legal expenses exceed $5 billion annually for all types of workplace violence. And employers may also incur replacement and retraining costs, lost production costs, and administrative costs related to workplace violence. Such “indirect” costs are highly variable, but are anecdotally estimated to be 1.5 to 20 times the direct costs of medical treatment, wage­replacement, and disability pensions.

What can your business do to be proactive concerning weapons and workplace violence?

To help decrease risk, employers should generally follow these practices:

  • Implement a workplace violence policy that informs employees that threats or violent acts at the workplace are not tolerated;
  • Keep the policy simple and easy to read;
  • Define workplace violence to include acts of violence (regardless of whether the act results in physical injury), harassment, bullying and other intimidation;
  • Prohibit the possession of weapons in the workplace unless there is a specific reason not to, and make clear whether or not the company policy supersedes a concealed carry license;
  • Define company property, e.g., “Company property means all company-owned or leased buildings and surrounding areas such as sidewalks, walkways, driveways and parking lots under the company’s ownership or control. This policy applies to all company-owned or leased vehicles and all vehicles that come onto company property.”;
  • Communicate procedures for employees to report threats or violent acts;
  • Set a disciplinary procedure for employees that violate the policy;
  • Explain the resources available to employees.

For more information on how to promote awareness and prevention of workplace violence, check out the Washington Department of Labor and Industries’ Workplace Violence Manual.

Please remember that the information on this site, including this post, is general in nature and must not be relied upon as legal advice. Your situation may require a different analysis, and the information on this site may not be up to date.

Photo: Ben Dalton | Flickr
Photo: Five Starr Photos | Flickr

If you’re interested in learning more about employee policies generally or have questions about how to incorporate workplace violence prevention into your current policies, please comment below or contact us today.

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