United States: Ohio's New Law Altering The Concealed Carry Obligations Of Employers Goes Into Effect In March

The effective date of Ohio's new concealed carry law that will alter the ability of Ohio's employers to ban firearms on their property and premises is quickly approaching. Signed by Governor John Kasich on December 19, 2016, Senate Bill 199 curtails the right of private employers to adopt policies that prohibit, or have the effect of prohibiting, employees and others with valid concealed handgun licenses (CHL) from transporting and storing their handguns in personal vehicles in the employers' parking area. The new law also expands the right of public and private Ohio colleges and universities to decide whether to permit concealed carry on their campuses. This new law is set to take effect on March 21.

Current Ohio Law Regarding Employer Concealed Carry Policies

Under Ohio's current law, most private employers have the authority to decide whether to ban firearms in the workplace. Those private employers may freely permit or restrict the presence of firearms on their property and premises, including in their parking areas, as they deem appropriate and without regard to whether a person is a CHL holder or how the firearm is stored in a vehicle. A private employer also may post signs in a conspicuous location on the premises that it controls prohibiting persons from carrying firearms onto that property or on those premises.

Public and private colleges, universities or other institutions of higher education, however, do not have discretion in whether to permit or restrict the presence of firearms on their property or premises. The current law bans concealed carry on any premises owned or leased by those institutions, except that individuals with valid CHLs are permitted to transport and store a handgun locked in a vehicle on those institutions' property or premises.

All private employers are protected from civil liability for damages for injury, death or loss that allegedly is caused by or related to the employer's firearm policy or is caused by or related to a licensee bringing a firearm onto the premises or property. Political subdivisions of the state are similarly immune from liability.

Senate Bill 199's Changes to Employers' Concealed Carry Rights

With the passage of SB 199, the rights of private employers and private and public colleges and universities with respect to concealed carry decisions will be similar. Private employers that previously could regulate all aspects of concealed carry in the workplace will have that right curtailed, as they now will be required to allow employees with a valid CHL to transport and store firearms in personal vehicles on the employer's property ("parking lot carry law"). On the other hand, public and private colleges and universities that previously had no discretion in regulating concealed carry will now have an expanded right similar to that of private employers to decide whether to allow concealed firearms to be carried on their campuses ("campus carry law"), but they will still be required to allow valid CHL holders to transport and store firearms in vehicles on campus.

More specifically, the new parking lot carry law makes it illegal for private employers to establish, maintain or enforce a policy or rule that prohibits, or has the effect of prohibiting, a valid CHL holder from transporting or storing firearms in a personal vehicle on the employer's premises when the following two requirements are met: (1) the CHL holder remains inside the vehicle with the firearm and ammunition, or the CHL holder locks the firearm and ammunition in the trunk, glove box, or other enclosed compartment or container within or on the personal vehicle when he or she leaves the vehicle, and (2) the vehicle is in a location where it is otherwise permitted to be. The practical effect of this law is that private employers, like private and public colleges and universities, now must permit employees to keep their handguns in their personal vehicles when the vehicles are parked in the employers' parking lot or parking garage.

As for the campus carry law, it expands the right of public and private colleges and universities to decide whether to permit the concealed carry of firearms by valid CHL holders on campus. Although the default law is a ban on concealed carry on campus, the board of trustees or the governing body of the institution may now vote on and adopt policies or rules that authorize specific individuals or classes of individuals to carry a concealed handgun on campus. This means that the institutions could vote to allow concealed carry for the entire campus or for certain segments of the campus only, such as faculty and/or staff.

Private employers are granted broad immunity from civil liability for damages, injuries or death resulting from or arising out of another person's actions involving a firearm or ammunition transported and stored in a personal vehicle and from theft of a firearm from the personal vehicle, unless the employer intentionally solicited or procured the injurious action. All institutions of higher learning are similarly immune from civil liability.

Application of the Parking Lot Carry and Campus Carry Laws

As these new provisions have yet to go into effect, it currently is unclear how they will be implemented and enforced.

With respect to the parking lot carry law, there are three primary areas of uncertainty:

  1. What type of policies will have the effect of prohibiting CHL holders from storing firearms in personal vehicles? The new law bans not only policies that prohibit CHL holders from keeping firearms in their private vehicles but also policies that have the effect of prohibiting CHL holders from keeping firearms in their private vehicles on the premises. As SB 199 does not define what types of policies may have such an effect, employers are left with little guidance as to how to structure policies consistent with the law's provisions. For example, it is unclear whether policies that require an employee to disclose the presence of or intent to carry firearms in personal vehicles on the premises, require an employee to show proof of a valid CHL or require some verification that the employee meets the requirements for transporting and storing the firearm on the premises would have the effect of prohibiting CHL holders from keeping firearms in their private vehicles on the premises. The application of that provision of the new law therefore will be on a case-by-case basis once the law goes into effect.
  2. How should employers address situations of parking lot carry that do not comply with the law? The parking lot carry law does not specify how employers may legally address situations where an individual transports and stores firearms and ammunition on the employer's premises in a manner inconsistent with the law's requirements. For example, the new law does not indicate what actions, if any, an employer should or is permitted to take to address situations where an employee or other person transports or stores a firearm and ammunition in a personal vehicle on the employer's premises without a valid CHL license, in a location where the personal vehicle is not permitted, in an unlocked personal vehicle or in plain view in the personal vehicle. Although it seems to be implicit that the law's prohibitions would not apply in those circumstances, the absence of any guidance on how employers should handle these situations creates uncertainty for employers as they consider creating or revising new policies consistent with SB 199.
  3. What remedies does an employee have for violations of the parking lot carry law? The new parking lot carry law does not specify how it will be enforced for employees and other CHL holders. The legislature did not pass a prior version of the bill that would have made CHL holders who store firearms and ammunition in their personal vehicles a "protected class" subject to anti-discrimination laws. As for the enacted law, it is silent as to what, if any, penalty an employer may incur for failure to comply with or for violations of the new law. Given that the Ohio Revised Code will now expressly protect the right of a CHL holder to transport and store a firearm in a personal vehicle on the employer's property, an employee may be able to assert a cause of action for wrongful termination based on public policy should he or she be terminated for exercising his or her rights in accordance with the new law. However, the probability of success for such a cause of action remains to be seen.

As for the campus carry law, Ohio's private and public colleges and universities generally appear to be rejecting concealed carry on their campuses. Major colleges and universities such as Ohio State, the University of Cincinnati, Miami University of Ohio, Xavier University and Wright State University continue to ban concealed carry on campus. Although in January the board of trustees of Ohio University considered input on the concealed carry issue in light of SB 199, the Ohio University Student Senate recommended to the board of trustees that it take no action on SB 199 after referendum results showed that approximately 65 percent of the students voted against allowing concealed carry on all of Ohio University's campuses. Whether these and other Ohio colleges and universities will address or reassess concealed carry policies after the effective date of SB 199 remains to be seen. Currently, though, the general consensus appears to be to maintain the status quo.

Review and Revision of Policies and Procedures

Whether or not SB 199 is a welcome change for employers, its provisions will go into effect on March 21. Before that effective date, employers should reassess their weapons policies and practices in light of the new Ohio law. They also should consider how their policies and practices are impacted by concealed carry laws of other states relevant to their business. For instance, on February 22, New Hampshire became the 12th state to enact "constitutional carry" legislation that legalizes carrying a concealed weapon without a license. Other states are considering similar bills to abolish concealed carry permit requirements. This new legislation could have implications for the implementation and enforcement of concealed carry policies and practices in those particular states.

To the extent concealed carry policies and practices are revised or rescinded in light of Ohio's and other states' laws, employers should provide their employees with notice as soon as practicable. Employers also should closely monitor the applicable laws and be prepared to take proactive steps to adjust policies and practices as new guidance on application of the laws becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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