It seems that nearly every week, a mass shooting is reported in the news. Most mass shootings occur in some type of workplace. Sometimes the shooter is an outsider who enters the workplace, often, randomly. Other times, the shooter is a current or former employee who is disgruntled. Regardless of the status of the shooter, employees need to know how to react. A recent example is the mass shooting in El Paso during which the gunman opened fire in a Walmart while customers were shopping and employees were working. The shooter killed 22 people and injured 24 others. One employee led nearly 100 people out the back of the store to safety.
When the shooter is a coworker, there are often warning signs in the days or weeks before the attack. For example, earlier this month, police arrested a cook who worked at the Long Beach Marriott after he allegedly told a coworker of his plans to shoot coworkers and hotel guests. The coworker tipped off the police and the police arrested the cook before he could carry out his plans. The police found a stockpile of guns at the cook’s house.
Given the growing epidemic of mass shootings, it is critical for employers to create a safe workplace and protect against liability while complying with state and federal laws.
Under the federal Occupational Safety and Health Act (OSHA) and similar state laws, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a). To comply with OSHA and for the well-being of employees, every employer should adopt an anti-violence policy which may include a ban on weapons.
An employer’s anti-violence policy should address whether employees may bring guns to work. In Utah, an employer can ban employees from bringing guns and other weapons to the workplace. However, a Utah employer may not restrict employees from storing their legally-owned firearms in their vehicles while parked on employer property if the firearm is locked securely in the vehicle and is not in plain view. There is an exception which allows an employer to prohibit employees from storing a firearm in their vehicles on employer property if the employer provides an alternate parking lot at no additional cost or a secure, monitored location where employees can store their firearms. Protection of Activities in Private Vehicles Act, Utah Code Ann. § 34-45-103. Employers should inform employees of their policies regarding weapons on the premises and in vehicles either in a handbook or a separate anti-violence policy.
An employer may also consider banning customers and other third parties from bringing weapons onto business premises. Individuals with concealed firearm permits can carry a fully-loaded and concealed firearm into any area except federal or state restricted areas such as any airport secured area, federal facilities, courts, correctional and mental health facilities, law enforcement secured areas, a house of worship or private residence where notice is given or posted. Utah Code Ann. § 76-8-311.1. Utah law does protect private owners from liability in certain circumstances if a person who has a concealed firearm permit brings the firearm onto the owner’s property. In such a case, the property owner is not civilly or criminally liable for any damages or harm resulting from the discharge of the firearm by the permit holder. Utah Code Ann. § 53-5a-103. There are similar protections for a person who owns or controls a parking area. Utah Code Ann. §34-45-104.
Even with these protections, many employers and property owners choose to ban guns from their premises. The employer must give proper notice to the public that weapons are not allowed on the work premises. Private business may choose to put up signage notifying the public that no guns or weapons are allowed on the premises. An individual who ignores a “no weapons” sign may be subject to trespass and other charges if they enter a premise with a weapon. The courts have not weighed in on whether there are any constitutional issues with a private business banning guns on its premises.
A company’s anti-violence policy should also contain policies that address other subjects including:
- The company’s right to conduct background checks to ascertain any patterns of violence in applicants’ backgrounds
- Mental health support for employees
- Resources for employees who are involved in a violent incident
- A zero-tolerance anti-violence policy
- Disciplinary procedures for employees who violate the anti-violence policy
- Workplace dispute mediation
- Procedures for employees to report (including anonymously) concerns in the workplace, threats and acts of violence (including no retaliation policies)
- Procedures for employees to comfortably report domestic violence and protective orders so employers can enact a safety plan
- Procedures for when law enforcement should be contacted
- The company’s right to search employees’ personal storage areas, such as desks and lockers
- The company’s right to conduct regular on-site inspections
- A communication policy that informs employees their workplace email and messaging is subject to monitoring
- Employee surveys to analyze and address existing safety concerns and threats
- A threat management team
- Training employees for an active shooter situation and other violence situations
Many employers are taking this last step to protect employees by training employees to recognize the warning signs of a potential shooter and how to respond in the event of an active shooter. Local police departments can provide this training. Employers are also investing in safety equipment such as bulletproof glass, office doors that lock from the inside, securing space with multiple exits, implementing intracompany communication mechanisms and even purchasing specialized insurance policies to protect against liability and ensure that employees have access to post-event services, including counseling.
Utah employers should establish policies regarding violence and weapons in the workplace. Employers should also develop policies, training and protocols to proactively mitigate the risks of workplace violence, prevent its occurrence, react effectively and provide resources to employees should workplace violence occur.
Please contact Christina Jepson at Parsons Behle & Latimer for assistance with a workplace violence policy for your company by calling (801) 532-1234 or sending an email to cjepson@parsonsbehle.com.
