In Part one of this article, I set forth the basic provisions related to the intersection of individual concealed carry rights and the ability of employers to regulate their workplace. To recap, holders of a concealed carry permit are entitled to carry their weapons to work by default, provided that the workplace is not among those places prohibited by statute in Nebraska. See, generally Neb. Rev. Stat. § 69-2441(1)(a) (Reissue 2009). If employers wish to prohibit concealed handguns from the workplace, they must take steps to either post conspicuous notices relaying that information or directly inform permit-holders of the prohibition. Neb. Rev. Stat. §§ 69-2441(1)(a)(14) and 69-2441(2). Employers do not have authority to prohibit the storing of concealed handguns in employees’ personal vehicles that are in public parking areas. Neb. Rev. Stat. § 69-2441(3).
This general statutory framework leaves a lot of room for employers to implement policies. On one end of the spectrum, employers may choose to ban concealed weapons from the workplace to the fullest extent of the law. On the other hand, some employers, whether due to a love for the second amendment or other reasons, may opt to ignore the issue altogether and leave the regulation of concealed carry permit holders to lawmakers. But what about middle ground? Can an employer permit certain employees to carry concealed weapons, but not others? If so, how should the distinction be drawn? For businesses in which employees operate company vehicles in high-crime areas, should those employees be allowed to carry concealed in the company car while on the job?
While some states have granted statutory immunity to employers with regard to their decisions to permit or prohibit guns in the workplace, Nebraska has not done so. As such, employers should consider their potential exposure to lawsuits. The Occupational Health and Safety Act (“OSHA”) is a federal law that requires employers to provide a safe working environment. Many commentators are of the opinion that allowing guns creates an unsafe environment per se. Some state legislatures have addressed this head-on (and an administrative law judge in Tennessee has explicitly found that allowing handguns, standing alone, does not create an unsafe environment), but Nebraska has not addressed this issue. Employers may also subject themselves to worker’s compensation claims (from employees) or negligence and vicarious liability claims (from non-employees) if anyone is injured in a gun-related incident.
Ultimately, the appropriate policy for your business requires a careful weighing of the issues and great attention to detail. The worst thing for your business is to ignore the issue and not address it with a well-crafted policy of some type. At the very least, every employer should prohibit anyone from illegally carrying a concealed handgun on its premises. Employers should also ensure that whatever policy is selected does not run afoul of state law. Beyond that, consideration should be given to risk tolerance, the realities of the business, and personal preference. Likely, the safest way to insulate your business from liability related to guns in the workplace is to adopt the most restrictive anti-gun policy allowed pursuant to state and federal law. However, some business owners consider the potential liability to be an acceptable risk incident to the exercise of a constitutional right. One employer in Georgia decided that there is greater risk in being unarmed, implementing a policy that requires employees to carry concealed weapons. Click Here for more information.
Whatever direction you take, don’t be caught without a plan.