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Gunfight at the OK Stripmall

July 22nd, 2009  |  Matt Pavich

>Arizona is the latest in a growing number of states that have restricted an employer’s right to maintain a firearm-free place of business. In enacting the new law, S. 1168, the Grand Canyon State legislature is the latest such body to put gun rights ahead of both the property rights of employers and the safety rights of just about anyone who happens near those establishments.

But the Arizona law, which forbids Arizona property owners, tenants, public and private employers and business entities from prohibiting firearms in vehicles that enter their property, is not even the most egregious example of the gun lobby’s power.

An Oklahoma law makes it unlawful for employers, private or public, to even ask employee applicants whether they own or have guns. A Florida law allows employees, including those at daycare centers, to have their guns in their car during the workday. In the battle between the business lobby and the gun lobby, it’s the National Rifle Association that is number one with a bullet.

The NRA has, in recent years, made these laws a priority and this trend should concern employers. This isn’t a case of a legislature rightly informing employers that they cannot discriminate in their hiring practices or mandating certain accommodations for persons with disabilities. These laws tell employers that they cannot enact safety measures that might step on the tender toes of the all-powerful American gun lobby.

And, have no doubt, keeping businesses gun-free is a real and serious safety issue. A 2005 survey in the American Journal of Public Health found that gun-friendly workplaces were five to seven times more likely to host workplace homicides than safety-friendly workplaces. The same survey found that 60% of major employers stated that disgruntled employees had threatened senior managers with serious physical harm. One doesn’t have to take a giant leap to imagine the potential disasters that could arise, should an unstable employee with a pistol in his trunk be given his walking papers.

Don’t these laws implicate the OSHA-mandated responsibility of employers to maintain a safe workplace? Of course they do, but in upholding a different Oklahoma law that prohibited employer gun bans, the Tenth Circuit found insufficient evidence that guns on company property constituted a real threat. In Ramsey Winch v Henry, 555 F.3d 1199 (10thCir. 2009), the court found that OSHA only requires employers to keep their workplaces free of “recognized hazards.” Because OSHA hasn’t promulgated standards prohibiting guns in the workplace, reasoned the court, guns in the workplace must not constitute a “recognized hazard.”

It’s the judicial-ese equivalent of “guns don’t kill people, people kill people.” And it completely ignores the political reality facing OSHA, a government agency, accountable to politicians who, more often than not, face intense pressure from the NRA.

So if OSHA won’t act and state legislatures insist upon allowing guns into every inch of the American fabric and the courts refuse to intervene, what can employers do? The answer is, currently, not much. Employers need to ensure that their HR policies reflect the current, dismal reality. Don’t prohibit or ask about guns in these states. And consider stocking up on Kevlar.

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