Guns in the Workplace: What Has Changed, and What Can Employers Expect?

​On June 23, the U.S. Supreme Court issued a 6–3 decision in New York State Rifle & Pistol Association v. Bruen that expanded the right of Americans to bear arms as guaranteed by the Second Amendment of the U.S. Constitution. More accurately, the court significantly curtailed a state's ability to restrict citizens' right to carry firearms publicly for their self-defense.

The Bruen decision does not explicitly address the workplace. Nor does the ruling prevent businesses from enforcing their own restrictions on the possession and carrying of firearms at their facilities. But the court's decision recognizing a constitutional right to bear arms in public for self-defense may provide a foundation for subsequent challenges to private restrictions, including workplace bans on guns. Whether any such challenges will be filed and bear fruit remains to be seen.

The Bruen ruling struck down a New York law prohibiting individuals from carrying guns in public, but left open the question of whether states might still be able to ban guns from certain sensitive places. It stemmed from a challenge by two citizens who were denied licenses to publicly carry handguns under New York's state firearms statute. Individuals who desired to carry a firearm outside of the home could obtain an unrestricted license if they could prove that "proper cause exists," which required demonstration of "a special need for self-protection distinguishable from that of the general community." The two citizens' license 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 dismissed of the citizens' case, the Supreme Court granted certiorari to determine if firearms statutes like those in New York, California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey were constitutional under the Second Amendment and Fourteenth Amendment.

The majority opinion focused on the text and historical interpretation of the Second Amendment. The majority determined that laws restricting the carry of arms mostly prohibited public carry only 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.

The Bruen decision provides some useful insight into the current court's stance on gun control. First, the court drew clear distinctions between the 43 "shall issue" states and the six states plus the District of Columbia that are "may issue" states. 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 an applicant meets the statutory criteria. The court made clear that the Second Amendment does not have a "proper cause" or "means-end scrutiny" component, and "may issue" states' restrictions would not pass constitutional muster.

Because many workplace-based restrictions originate from the general firearms laws of the state, employers in "may issue" states may want to revisit their policies to ensure that their viability is not reliant upon unconstitutional statutes.

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 stated that "shall issue" schemes, which include background checks, bans on licenses for felons, etc., are still fine, as are prohibitions on firearms in sensitive places, such as schools and government buildings. The latter endorsement may be useful in resisting future challenges to workplace restrictions, as the Supreme Court opined that courts may use analogies to those historic sensitive places when examining whether "new and analogous sensitive places are constitutionally permissible."

Where Employers Stand Now

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 Occupational Safety and Health Act's general duty clause covers an employer's obligation to maintain a safe workplace through the prohibition of weapons at work.

Workplace firearms restrictions are generally covered by state laws. Slightly more than half of the states have some form of firearms law specific to workplace restrictions, but remarkably, 24 states, the District of Columbia, and Puerto Rico do not.

• The state laws that expressly cover the workplace generally address:
• Storage of firearms in vehicles on company property.
• Where on company property an employee may possess or carry a firearm.
• Restrictions on firearms in company vehicles.
• Immunity from liability.
  

Those state statutes differ with regard to who can store a firearm (e.g., licensed individuals only or anyone who can lawfully possess) and where possession is restricted (e.g., common areas, areas of ingress and egress, or parking lots). Many states have different rules for those who have concealed carry licenses and those who are carrying pursuant to permitless or "constitutional carry" laws.

The myriad of state laws complicate employers' efforts to develop and enforce firearms policies, posing particular difficulties for multistate employers. Employers may want to start with the premise that federal law allows them to prohibit firearms at work and on company property, then look to the nuances of state law to carve out the limitations, if any, that apply.

Safety is the foremost consideration for employers. Accordingly, employers may want to consider clear policies that define who, when, and where firearms are allowed, if at all. Given that firearms laws vary from state to state, it may not be possible for a multistate employer to create a blanket firearms policy.

Ever-changing laws also present difficulties in cultivating "future-proof" policies. As Bruen has shown, overly restrictive gun regulation is on the court's radar, and the court's rulings may have a trickle-down effect on guns in the workplace. Employers with outright firearms bans at their workplaces may want to consult applicable state laws to see if their policies are compliant and be prepared to make modifications, including revising the policies if the laws change.

Jeff S. Mayes is an attorney with Ogletree Deakins in Houston. © 2022. All rights reserved. Reprinted with permission.