Regulating Weapons in the Workplace in WV
Employers concerned about weapons in the workplace should adopt and enforce a workplace weapons policy and be aware of state laws that impact this area. As is well known, the Second Amendment to the US Constitution protects the rights of citizens to keep and bear arms. How far does the Second Amendment reach into a private workplace? What about weapons such as knives, brass knuckles, or martial arts weapons that are not regulated? Jenkins Fenstermaker’s experienced labor and employment group can assist employers in the greater Huntington area and throughout West Virginia (WV), Kentucky (KY), and Ohio (OH) in establishing workable policies for regulating weapons in the workplace in WV.
State and Federal Laws Regulating Weapons in the Workplace
Firearms are regulated by federal law and, in addition, every state has laws that govern the licensing, registration, sales, and carrying of firearms. Many states have specific locations where firearms are not permitted regardless of license. Employers must be aware of and craft employment policies in compliance with relevant federal and state laws.
Federal Regulation of Firearms in the Workplace
No federal law specifically addresses firearms in the workplace. However, many federal laws regulate firearms, including sales, registration, and restrictions. For example, any person who has been committed to a mental institution, no matter how long ago, is prohibited from carrying a firearm under federal law. With regard to restrictions, states can enact relief laws that examine an individual’s specific situation and restore that person’s right to possess a firearm. WV passed such a relief law in WV Code § 61-7-7(a)(4).
Workplace violence accounted for 500 fatalities and 16,890 injuries requiring time away from work in the private sector in 2016. The Occupational Safety and Health Administration (OSHA) governs workplace safety nationwide. OSHA extensively regulates workplace safety, but it has no binding regulation regarding weapons in the workplace. Still, an employer could face OSHA penalties arising out of weapons in the workplace if it is determined that the employer violated the OSHA “general duty clause” in 29 US Code § 654(a)(1). This law generally requires employers to provide employees with a safe place of employment.
OSHA’s website advises that an employer “that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.” Such a violence prevention program would likely include restrictions on weapons.
Tristate Laws on Weapons at Work
The legality of weapons in the workplace in WV, KY, and OH is governed by specific state laws. In 2016, WV became a “constitutional carry” state, requiring no permit to carry a concealed weapon. As under federal law, illegal drug users, persons habitually addicted to alcohol, persons convicted of a crime with a penalty longer than one year, and persons adjudged mentally incompetent are not permitted to possess weapons.
Some states, including KY, have laws giving workers the right to keep firearms in their vehicles while they are working. Under Ky. Rev. Stat. Ann. § 237.106, an employer that fires an employee for keeping a weapon in his or her vehicle while at work is subject to liability. Additionally, the employee is allowed to retrieve the firearm from the vehicle and “handle” it in the case of self-defense, defense of another, defense of property, or as authorized by the property owner.
OH law expressly permits but does not require employers to prohibit weapons on the workplace premises. It also immunizes employers from liability resulting from an employee’s disobedience to the employer’s weapons restrictions.
Neither employers nor law enforcement in OH may limit open carry freedoms in parking lots.
Special Concerns for Industries with Higher Violence Incidence Rates
OSHA has identified certain industries that are prone to higher rates of workplace violence, including healthcare and social service industries, late night establishments, and taxicab and vehicle-for-hire industries. OSHA has also issued Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. These guidelines are advisory, not regulations, and are not meant to create a legal standard of care. Still, employers in these sectors should be especially vigilant and consider implementing some of these recommendations for the protection of their employees and, potentially, protection from liability.
To establish or update a policy governing weapons in the workplace, reach out to an experienced labor and employment attorney at Jenkins Fenstermaker. Complete our online form or call us at (304) 523-2100 in the greater Huntington area or toll-free at (866) 617-4736.