1. The Supreme Court has opened the door for less gun control.
2. State gun control regulations for employers are varied, and subject to change.
3. Employer firearms policies need to be reviewed for consistency with state gun control regulations, with the understanding that future modifications might be necessary as the laws continue to change.
4. Review and adaptability are key, and the following checklist can put you on the right track.
On June 23, 2022, the Supreme Court of the United States issued its decision in New York State Rifle & Pistol Association v. Bruen, which significantly expanded Americans’ right to bear arms as guaranteed by the Second Amendment. More accurately, the Court significantly curtailed a state’s ability to restrict Americans’ right to publicly carry arms for self-defense. The Bruen decision does not mention the workplace. Nor does the ruling apply directly to the rights of private employers or prevent businesses from enforcing their own restrictions on possession and carry of firearms at their facilities (which the Court indirectly endorsed). The opinion will, however, undoubtedly impact businesses and employers now and in the future. Indeed, in addition to serving as the impetus for a likely increase in guns carried in public generally, the decision will also provide the foundation for subsequent challenges of private restrictions, including workplace bans on guns. Whether those challenges will bear any fruit remains to be seen. What is clear is that Bruen brought gun laws back to the forefront of the national consciousness, and with it a reminder for employers to revisit their workplace restrictions, as well as the law of the state(s) in which they operate.
The Bruen Decision
The Bruen decision stemmed from a challenge by two law abiding citizens who were denied licenses to publicly carry handguns under New York’s state firearms statute. Pursuant to the statute, any individual who desires to carry a firearm outside of home may obtain an unrestricted license if he or she can prove that “proper cause exists,” which requires demonstration of “a special need for self-protection distinguishable from that of the general community.” The two citizens’ applications were rejected because their generalized interest in self-defense failed to satisfy the statute’s “proper cause” requirements. After the Second Circuit Court of Appeals affirmed dismissal of their case, the Supreme Court granted certiorari to determine if the New York statute —and by extension the firearms statutes of certain other jurisdictions—was constitutional under the Second and Fourteenth Amendments.1
The majority opinion focused on the text and historical interpretation of the Second Amendment, with the analysis taking a fascinating deep-dive into arms control regulation dating back to the Middle Ages. Moving through centuries of weapons regulations, the majority determined that laws restricting the carry of arms – from the carry of lances in the 1200’s to the Reconstruction era carry of firearms by former slaves – mostly prohibited only the carry for unlawful and malicious purposes (such as overthrowing the King) and generally endorsed public carry for self-defense. The review led to the conclusion that no historical prohibition was similar or supportive of New York’s restrictive licensing requirements.
While interesting, Bruen’s history lesson is not particularly informative of any workplace issue facing private employers. The decision does, however, provide some useful application and insight into the current Court’s stance on gun control. First, the Court made clear distinctions between the 43 “shall issue” states (good) and the 6 states plus the District of Columbia that are “may issue” states (bad).2 In “shall issue” states, the states must issue licenses when applicants satisfy certain requirements. In “may issue” states, licensing officials have discretion to scrutinize and deny a license even when the applicant meets the statutory criteria. The Court made plainly clear that the Second Amendment does not have a “proper cause” or “means-end scrutiny” component, and “may issue” states’ restrictions will not pass constitutional muster. Because many workplace-based restrictions originate from the general firearms laws of the state, employers in “may issue” states may need to revisit their policies to ensure that their viability is not reliant upon unconstitutional statutes.3
Both the majority and concurring opinions made clear that the Court was not announcing an outright ban on all gun control restrictions and laws. It tacitly stated that “shall issue” schemes – which include background checks, bans on licenses for felons, etc.—are still fine, as are prohibitions of firearms in “sensitive places” such as schools and government buildings. The latter endorsement will certainly be useful in resisting future challenges to workplace restrictions, as the Court opined that courts can use analogies to those historic “sensitive places” when looking at other places.
Where Employers Stand Now – Allowable Workplace Restrictions Under State Law
The Second Amendment does not guarantee the right of private or public employees to carry or possess firearms at work. There are no federal laws specifically addressing firearms in the workplace, though the OSHA general duty clause would presumably cover an employer’s obligation to maintain a safe workplace through the prohibition of weapons at work.
Workplace firearm restriction is generally covered by state law. A majority of states have some form of firearms law specific to workplace restrictions, but remarkably 24 states4, the District of Columbia, and Puerto Rico do not. The state laws that do expressly cover the workplace generally address (1) storage of firearms in vehicles on company property, (2) where on company property an employee may possess or carry a firearm, (3) restrictions on firearms in company vehicles and/or (4) immunity from liability. Among those statutes, states differ on who can store a firearm (i.e. licensed individuals only or anyone who can lawfully possess) and where possession is restricted (e.g. common areas, areas of ingress and egress, parking lots). Many states have different rules for those who have a concealed carry license and those who are carrying pursuant to permitless or “constitutional carry” law.5
The myriad of laws complicate employers’ efforts to develop and enforce a firearms policy, posing particular difficulties for multistate employers. Employers should start with the premise that federal law allows them to prohibit firearms at work and on work property, then look to the nuances of state law to carve out the limitations, if any, that apply. The following checklist can help:
General / Background Considerations:
- In what state(s) do we have facilities or operations?
- Is the state one of 25 permitless or “constitutional carry” states?
- Does the state require permits to carry a firearm?
- Is the state or jurisdiction one of the 7 “may issue” jurisdictions referenced by the Supreme Court in Bruen
- Has the firearms law of the state recently changed?
Workplace Firearms Restrictions:
- Does the state have a firearms statute that directly addresses employers and workplaces?
- If no, is there a local ordinance that addresses firearms in the workplace?
- If no, is there a general firearms statute that could be interpreted to apply to the workplace?
- Is there any restriction on an employer’s right to prohibit firearms at work or on the premises?
- Does the statute specifically identify areas where employees are allowed to possess firearms on the premises?
- Does the statute specifically limit an employee’s right to possess a firearm on the premises to a locked vehicle in the parking lot?
- Does the statute provide that employees may store firearms in other secure locations on the premises?
- Are there limitations to the “parking lot” provisions that would prohibit employee possession, such as proximity to a sensitive area, such as a school or government building?
- Are the rights of employees to possess a firearm in locked vehicles or other specified areas limited (or different) depending on the status of the employee, such as a holder of a concealed handgun license?
- Does the statute allow a prohibition of firearms in company-owned vehicles, regardless of location?
Notice / Signage:
- Have we provided notice to employees about our firearms policy?
- Did we provide notice to employees about our firearms policy in light of any changes to our state’s firearms law?
- Is our policy posted in common areas?
- Does our state firearms law have signage requirements for the general public regarding the prohibition of firearms on the premises?
- Does the statute require specific language relating to concealed license holders, or permitless carry?
- Does our signage expressly reference that employees are included in all restrictions?
Safety / Liability:
- Does our state have a statute providing for immunity from liability under the firearms law if conditions are met?
- Do we meet the conditions?
- Are we proactively taking steps to ensure that we meet all necessary conditions for immunity?
- How are we enforcing our firearms policy?
- What steps are we taking to ensure that our firearms policy is being followed / is in compliance with state law?
- Certifying that employees have proper licenses to possess firearms (if possession limited to same by statute)?
- Random or regular parking lot inspections to confirm locked vehicles?
- Periodic reminders of the policy?
- Policy discussions after certain events, like workplace shootings or changes in the law (like Bruen)?
As to firearms in the workplace, safety is the foremost consideration for all employers. With very few exceptions, all employers should consider a clear policy addressing firearm possession on workplace premises that defines who, when, and where firearms are allowed—if at all. Given that firearms law varies from state to state, it may not be possible for multistate employers to create a “one size fits all” firearms policy. The ever-changing law also presents difficulties in cultivating a “future proof” policy. Indeed, as Bruen has shown, overly restrictive gun regulation is on the Court’s radar, which has a trickle-down effect on guns in the workplace. Thus, employers with an outright firearms ban in the workplace should consider consulting state law to see if its policy is compliant, and be prepared to make modifications, including loosening restrictions if the law changes.
Cal/OSHA Proposes Revisions to Workplace Violence Prevention Requirements
Parking Lot Laws: Their Content and Applicability
State Concealed Carry Permit Requirements
Guns in the Workplace: Employer Firearm Policies in Texas and New York