On Jan. 1, 2016, Texas became the 45th state to allow some form of open carrying of firearms. The Texas statute allows licensed handgun owners to openly carry their weapons in a wide variety of locations, including most workplaces. In addition to the “open carry” statute, Texas also enacted a “parking lot law,” which permits employees to keep guns in locked private vehicles in parking lots, including the parking lot at their workplaces. Unlike the open carry statute, the parking lot law has no “opt out” mechanism for employers. While the precise numbers of employers who have chosen to allow weapons in the workplace is unknown, it appears that at least some Texas workplaces are now welcoming guns with, as they say, open arms.

Whether they encourage their employees to bring firearms to work or would prefer that the employees' guns stay at home, however, all Texas employers must comply with all applicable provisions of the state's bring-your-gun-to-work rules. In some cases, doing so can create tension between workplace violence prevention programs (which tend to discourage the presence of firearms) and compliance with Texas law.

Conduct State-by-State Analysis

As firearm laws continue to change across the country, multistate employers face sometimes conflicting limitations on workplace weapons restrictions. In some cases, the differing requirements make it impossible for employers to adopt a single weapons policy applicable in all jurisdictions, or even a single set of gun restriction signs to use in all locations.

In the process of navigating state-specific regulations, employers should return to the fundamentals of policy drafting: articulating the business-specific purposes of the policy, and aligning those objectives with other company policies and priorities. One universal consideration, of course, is the need for legal compliance. Another is an assessment of whether the workplace is ultimately a safer environment when the risk of shots fired in anger is removed, or is, to the contrary, better served by ready access to firearms.

Terminating Employees for Weapons Policy Violations

In some states, courts have found that gun rights trump employment-at-will. For example, in Swindol v. Aurora Flight Sciences, the Fifth Circuit found that Mississippi's public policy behind its “parking lot law” created a public policy exception to the state's employment-at-will doctrine. In Swindol, the plaintiff alleged that he was fired for having a firearm locked in his car while parked in the company parking lot. The gun was secured in accordance with state law but its presence still violated the employer's no-guns-on-the-premises policy. The Fifth Circuit certified the employment-at-will-exception question to the Mississippi Supreme Court, which affirmed that the state's parking lot law expressed a clear public policy protecting employees who kept locked firearms in their vehicles while at work. Consequently, the employee could state a cause of action under the state's “public policy” exception to employment-at-will.

Many employers have on their books long-standing policies describing “zero tolerance” for weapons at work. As the Swindol case suggests, such provisions should be reviewed to ensure their compliance with all applicable regulations (in all relevant jurisdictions), and that any terminations for violations of those policies are carefully analyzed before being implemented.

Could Complying With State Gun Laws Create OSHA Problems?

While treading carefully concerning the rights of their gun-owning employees, employers must also protect themselves against claims that allowing guns in the workplace may be an inherently unsafe practice. OSHA has suggested that allowing guns at work increases the likelihood of workplace violence and thus creates a safety hazard. This, in turn, may violate OSHA's “general duty clause,” which requires employers to maintain a workplace “free from recognized hazards … causing or … likely to cause death or serious physical harm” to employees. OSHA's concerns about guns have never been promulgated into an actual regulation, however. To the contrary, OSHA has made an affirmative decision to avoid promulgating any regulations prohibiting guns in the workplace. Additionally, absent a finding of gross negligence, the Texas Labor Code protects employers from liability for personal injury, death, property damage, and other damages arising out of an accident involving a firearm when the employer is “required to allow” the firearm on the premises. Similarly, a Texas employer is not required to secure the parking lots it provides for employees' private vehicles or to investigate whether the employees have properly stored any firearms in those vehicles. It is unclear what might constitute “gross negligence” by a Texas employer when one of its employees causes injury by firing a weapon, particularly, when the employee is entitled by statute to bring the weapon onto his employer's premises. However, a history of violent outbursts might be found to have put the employer on notice of the potential danger.

Texas's open carry law allows employers some freedom to determine whether their particular workplaces are likely to be more or less safe when guns are at hand. That analysis is an ongoing one, specific to each workplace. Rather than assume a one-size-fits-all approach, Texas employers are well-advised to analyze their particular work environments to determine whether guns and work make suitable companions.

Jackie Ford is a partner in the Vorys Houston office and practices primarily in the field of labor and employment law. She can be reached at [email protected].