Private employers in Utah generally may establish workplace gun policies

GUNS AT WORK

November 2017
Ryan B. Frazier
Utah Employment Law Letter

In light of recent mass shootings in Las Vegas and Sutherland Springs, Texas, guns have become a hot topic. Some people want to enact bans and other regulations on cer­tain types of guns. Others adamantly insist that the Second Amendment to the U.S. Constitution protects the right to own, pos­sess, and use guns.

Unsurprisingly, the debate concerning firearms has spilled over into the workplace. Employers wrestle with whether to imple­ment rules banning or governing firearms at work or on their premises, perhaps unsure if the law will permit certain gun policies. Other than general bans on certain types of weapons (such as automatic weapons), fed­eral law doesn’t govern guns in the work­place. Thus, state laws largely determine whether an employer may establish gun policies.

 Employer gun policies in Utah

With limited exceptions, private employers in Utah are allowed to estab­lish their own policies concerning fire­arms. Some may be inclined to impose a firearms ban. Others may allow con­cealed weapons. Still others may decide to allow all firearms. This becomes a matter of policy, and employees can be expected to comply with the rules es­tablished by the employer. The U.S. 10th Circuit Court of Appeals (whose rul­ings apply to all Utah employers) hasn’t interpreted the Occupational Safety and Health Administration’s (OSHA) requirement that employers furnish a workplace free from recognized haz­ards to include guns.

Although Utah is generally seen as a progun state, an employee doesn’t have the unfettered right to carry a gun or other weapon onto the employer’s premises in violation of company policy. Failure to follow such a policy could re­sult in discipline, including termination.

In considering what policy to enact, you should be aware of Utah laws on gun ownership, possession, transporta­tion, and use. Utah allows most people (other than felons and a few others) to openly carry a gun in most places in the state as long as there’s not a bullet in the chamber. These individuals aren’t al­lowed to take guns into the secure area of an airport, a courthouse, a mental health facility, or any secure area where guns are prohibited and a notice of the prohibition is posted.

In addition, individuals may carry a loaded firearm concealed on their per­son as long as they have a concealed carry permit. There are, of course, re­strictions. Notably, Utah law specifically protects private property owners from criminal or civil liability if they allow a person carrying a legal concealed firearm onto their property. However, this protection doesn’t apply if the property owner solicits, requests, commands, encourages, or intentionally aids in dis­charging the firearm.

Public employers don’t have the freedom that private employers have to establish gun policies. According to Utah law, a local authority or state entity may not enact or pass any ordinance or other law or establish a policy (including employment policies) pertaining to firearms that in any way restricts or inhibits the possession or use of firearms on public or private property. In addition, no local authority or state entity has the ability to pro­hibit individuals from owning, possessing, purchasing, selling, transferring, or keeping a firearm at their resi­dence, property, business, or in any vehicle lawfully in their possession or under their control. Local authorities also don’t have the authority to enact firearms licensing requirements.

Firearms in private vehicles

In 2009, the Utah Legislature passed the Protection of Activities in Private Vehicles Act. Among other things, this Act prohibits employers and others from enforcing a policy or rule that prohibits an individual from trans­porting or storing a firearm in a motor vehicle. Of course, only legal firearms are protected by this statute. Further, to re­ceive the statute’s pro­tection, the employee must leave the fire­arm locked securely in the vehicle or in a locked container attached to the ve­hicle while it’s unoccupied. The firearm also must not be left in plain view from outside of the vehicle. This rule applies even when the vehicle is on an employer’s prop­erty, such as an employee parking lot.

However, you may maintain a policy that has the effect of limiting a person from transporting or storing a firearm in a vehicle on your property if you provide or otherwise make available alternative parking for the person storing or transporting the firearm. The alterna­tive parking must be a legal and safe location reasonably near the usual parking locations and must not impose additional costs on the individual. You may also prohibit the storing of a firearm in the vehicle as long as you pro­vide a secured and monitored storage location where the employee or person may securely store the firearm be­fore proceeding with the vehicle into the secured park­ing area.

Employers or others that control the parking area aren’t liable for occurrences or issues resulting from or connected with the use of the firearm by anyone, unless it involves a criminal act by the person controlling the parking area. For example, you wouldn’t be liable to a person injured from a gunshot wound as long as you complied with the Protection of Activities in Private Ve­hicles Act.

Bottom line

Generally, private employers may establish any pol­icy they would like (other than a private vehicle restric­tion) concerning firearms. Public employers don’t share that ability. Nevertheless, it’s always advisable to consult with an attorney concerning any policy to ensure it com­plies with state and federal law. Having a legal policy in place can, in some instances, help you avoid liability.

You can contact the author at rfrazier@kmclaw.com or 801-323-5933.

Attorneys

Practice Areas