Guns at Work: Keeping Employees Safe in Troubling Times

According to the Occupational Safety and Health Administration (OSHA), nearly two million American workers report experiencing some type of workplace violence annually. In fact, according to the Bureau of Labor Statistics (BLS), homicide accounted for nearly 9% of all on-the-job fatalities in 2023 (the most recent data available). Suicide accounted for another 5%. With civil unrest and tragic violence occupying news feeds, employers focus attention on addressing workplace violence, including those involving firearms.

However, over half of all states have enacted laws addressing employers’ ability to regulate possession of firearms on or near their property. West Virginia, Kentucky, and Tennessee are among those states. Accordingly, employers diligently attempting to provide a safe workplace must navigate complex waters. Let’s examine some of the issues relevant to “parking lot laws” and how they could complicate crafting your workplace violence policy.

Risks for Employers

There are many practical reasons employers would want to enact policies with the goal of preventing workplace violence, but there are also good legal reasons. While there are no laws creating a specific duty on employers to prevent workplace violence, the Occupational Safety and Health Act (OSH Act) imposes a general duty on employers to provide their employees with a workplace free from hazards that 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, so liability can likewise be somewhat open-ended.

State laws may also 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’ comp eligibility for injured employees. Finally, an employer could face tort (wrongful act) claims from a victim of violence that occurred on the employers’ property.

‘Parking Lot’ Laws

Aiming to protect an individual’s right to bear arms, at least 29 states (including Kentucky, Tennessee, and West Virginia) have enacted some type of law addressing firearms on business premises. Many take the form of a “parking lot law,” where the business cannot restrict employees, customers, or invitees from keeping lawfully owned firearms in their vehicles in certain circumstances. Some states, such as West Virginia and Tennessee, require that the firearm be stored out of sight in a locked vehicle or compartment when the owner is not around. However, other states such as Kentucky do not require the firearm to be out of sight or locked away.

If the employee, customer, or invitee follows these requirements, some of these laws afford them a “privacy right” that prohibits the business from searching a vehicle to ascertain whether one is present unless the search is conducted by on-duty law enforcement personnel pursuant to a warrant. Many also contain employment antidiscrimination provisions that prohibit an employer from conditioning employment on whether an employee (or prospect) owns a firearm, is transporting or storing a firearm, or holds a concealed carry permit. Statutes containing these employment protections essentially create a new “protected class”—gun owners.

Statutory enforcement mechanisms can also be stringent, as well. For example, West Virginia’s statute authorizes the state attorney general to seek injunctive relief, civil penalties of up to $5,000 for each alleged violation of the act, and attorneys’ fees. West Virginia’s law also authorizes employees, customers, and invitees to file private civil lawsuits.

If the unthinkable were to happen and an employee were to use the firearm stored in his or her vehicle to commit harm on your property, most of these laws (including all three states mentioned above) protect employers from civil liability.

Crafting a Workplace Violence 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, and to whom, to report problems. They should also be taught how to recognize potential risks and how to act safely should the risks become real. You should be ready and able to investigate any reports of incidents or threats and institute appropriate corrective action.

Remember that “parking lot laws” typically only authorize employees to store firearms in a locked personal vehicle in the employer’s parking area. They do not apply to any other area, nor do they protect the carrying of firearms outside the vehicle. You should include provisions in your firearms policy that spell out exactly where firearms are allowed on your property. This should not extend beyond the requirements of the applicable “parking lot law.” In other words, avoid enlarging the area where firearms may be brought (for example, into the building or areas other than 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.

Bottom Line

Employers understandably want to prevent violence in their workplace. However, “parking lot” laws can make those employers feel limited in the steps available to them to keep employees and customers safe. If you plan to implement or update your workplace violence policy, consult competent employment counsel to avoid igniting the powder keg of potential conflicts with employees or the enforcement mechanisms of these nuanced and widely varying state statutes.

Mark C. Dean is an attorney with Steptoe & Johnson PLLC in Charlston, West Virginia, and can be reached at 304-353-8105 or mark.dean@steptoe-johnson.com.

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