Word for word, the Second Amendment to the United States Constitution reads that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Since being authored in 1791, this language has been the subject of considerable debate amongst scholars, politicians and advocates regarding the scope of an American citizen’s individual right to possess firearms. Recent state legislative developments throughout the country have added a new hot topic of debate – a private employer’s right to prohibit firearms on company property.
On March 21, 2017, Ohio became the latest state to enact legislation restricting a private employer’s ability to prohibit the possession of firearms on company property. Commonly known as Senate Bill 199, Ohio law now makes it illegal for an employer (private or public) or any other property owner to “establish, maintain, or enforce a policy or rule” that “prohibits or has the effect of prohibiting” any person holding a concealed carry permit from transporting or storing a firearm in their personal vehicle. Instead, Senate Bill 199 permits a concealed carry permit holder to transport and store a weapon in his or her vehicle while on an employer’s property, as long as the firearm is properly stored or secured and the vehicle is in a parking lot or other location where vehicles are permitted. Any employer policy that serves to prohibit or restrict these rights will be found to violate Ohio law.
Ohio employers are hardly alone in this narrowing of their ability to prohibit weapons on company property in the interest of workplace safety. Nearly 20 other states, including Indiana and Kentucky, have laws on the books that restrict an employer’s workplace safety efforts in favor of protecting Second Amendment rights. The specific protections and restrictions of these “parking lot” laws differ from state to state. For example, Ohio and Indiana each permit employees to possess a firearm in or on a personal vehicle while on company property, but both states require employees to hide or secure the weapon before exiting the vehicle. In addition, neither state permits an employee to remove or handle the weapon for any purpose while at work. On the other hand, Kentucky law not only allows an employee to store a firearm in his or her vehicle on company property, but also permits the employee to remove and handle the weapon for defensive purposes or if “otherwise authorized” by the property owner. Additionally, Kentucky does not require an employee to hide or secure the weapon when exiting the vehicle; instead, the firearm can be left in plain sight throughout the workday.
Despite their differences, the practical effect of these laws is the same – employers are no longer permitted to enforce blanket prohibitions against possessing firearms while on company property, or otherwise adopt any workplace policy that may have the effect of such a prohibition. Even if such policies are well-intentioned and designed to enhance workplace safety, state law now requires that exceptions be made to allow concealed carry permit holders to transport their firearms to work in their personal vehicles. For this reason, employers would be wise to carefully review and, if necessary, revise their workplace safety policies and procedures to ensure that they are not violating these state “parking lot” laws.
Unfortunately, the devil is often in the details, since employers who do business in multiple states may be subject to conflicting obligations with respect to their employees’ rights to possess firearms. Nevertheless, employers can take several steps to help ensure their policies conform to the requirements of state law.
Incorporate Specific Exceptions Into Your Policy
Employers should update their safety or weapons policies to specifically account for the requirements of state law. These changes can be as simple as creating an exception from any weapons prohibition for conduct permitted under state law. For example, the following provision may comply with the majority of state laws: “Nothing in this policy shall prohibit an individual holding a valid state concealed carry license, or who is otherwise in lawful possession of a firearm, from engaging in conduct permitted under applicable state law while on company property.” Alternatively, employers can craft statespecific policies that identify what is permitted and what is not permitted under the relevant state law. Regardless of the approach, employers should make certain their policies cannot be interpreted as restricting an employee’s right under state law to transport a firearm onto company property.
Identify Where Vehicles Can Be Parked
Employers should also clearly define where on company property an employee’s personal vehicle is permitted. While a parking lot or garage seems to be the obvious answer, employer policies may not specifically communicate this to employees. The absence of such clarity can inadvertently expand an employee’s legal right to transport firearms onto company property. For example, Ohio law’s protections are not limited to a company parking lot, but instead allow employees to transport and store firearms in their personal vehicle anywhere on company property where their vehicle “is otherwise permitted to be.” Unless company policy clearly defines where such vehicles are permitted, employers will have a difficult time enforcing any weapons prohibition against individuals who park their vehicles somewhere other than in the parking lot.
Notify Your Workforce
Any updates or revisions to an employer’s weapons or safety policy should be clearly communicated to all employees, supervisors and managers. All employees should be given examples of conduct that is permitted under state law, as well as conduct that is not allowed and may lead to disciplinary action under company policy. Supervisors and managers should likewise be provided guidance on how to enforce the revised policy without running afoul of state law. This guidance should include procedures for addressing the actual or suspected possession, transportation or storage of firearms on company property in a manner that may not be protected by state law. Finally, all employees should be reminded that carrying firearms (open or concealed) while at work is still largely prohibited under state law and company policy, and will subject an employee to disciplinary and legal action.
The recent legislative action in Ohio highlights a continuously expanding movement under state law to curb an employer’s ability to prohibit weapons on company property in favor of promoting an individual’s right to bear arms. While such an entitlement is by no means absolute, employers must nevertheless consider an employee’s legal right to possess firearms when crafting and enforcing workplace safety policies. By taking steps now to understand the specific requirements and limitations imposed by state law, as well as to review and update existing policies, employers can ensure that they effectively accommodate the legal rights of employees while also maximizing their workplace safety standards.