Healthcare Providers Wrestle with New Conceal and Carry Law
By: ROBERT C. BOISVERT
*Appeared in the September 2003 issue of Minnesota Physician; reprinted with permission.
A storm of controversy greeted the passage of the Minnesota Citizen's Personal Protection Act of 2003, commonly referred to as the "Conceal and Carry Law." The Act, which became effective on May 28, 2003, allows a pistol "permit holder" to carry a pistol on his or her person or clothes, in a motor vehicle, snowmobile, or boat, or in a public place. The Act also removes the discretion of county sheriffs to deny applications for pistol permits and, instead, requires sheriffs to issue pistol permits to any applicant who meets the qualifications described in the Act.
Many healthcare providers are concerned that the new law will mean that employees, patients, and visitors will be more likely to bring guns onto their premises, creating a greater risk of violence or accidents. Many employment lawyers share this concern and are recommending that businesses, healthcare providers, and employers take steps to ban guns and other weapons from the premises.
Prohibiting Possession by Employees
The Act allows private and public employers to "establish policies that restrict the carry or possession of firearms by [their] employees while acting in the course and scope of employment." The Act also permits employers to impose "employment-related civil sanctions" if employees violate the policy.
Thus, healthcare providers wishing to prohibit their employees from having guns or other weapons at work or while working off premises should adopt and distribute to their employees written no-weapons policies. Healthcare providers also may wish to include language prohibiting violent or threatening behavior and informing employees who they may contact if they suspect violations of the policy. The policy should advise employees that violation may result in discipline up to and including discharge. Finally, providers should consider including language that permits them to conduct searches to enforce the policy, although such provisions are sometimes controversial. Healthcare providers with unionized employees may be required to bargain with the union before implementing a workplace violence policy.
While the Act allows employers to prohibit employees from carrying or possessing firearms in the course and scope of employment, it specifically bars employers from prohibiting "the lawful carry or possession of firearms in a parking facility or parking area." Many employers are troubled by this limitation because it appears to force them to allow firearms on their property and near their workplaces.
Despite the Act's language, some employers are testing various legal theories to try to ban firearms in parking areas. Some of the theories are:
- Requiring employers to allow employees to have firearms in their parking lots violates the General Duty clause of the federal Occupational Safety and Health Act (OSHA), which requires an employer to furnish employees with "a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm."
- Employers, as owners or lessors of their property, have the right to exclude any person from their property, including persons carrying firearms, so long as they do not violate civil rights laws.
- The Act is intended only to describe what type of conduct constitutes criminal trespass, meaning employers may ban firearms from their parking lots but they may not prosecute violators for criminal trespass.
- Employers have the ability to enter into employment agreements in which employees, as a term and condition of employment, agree not to bring firearms onto work premises, including parking areas. These agreements could be enforced under contract law.
- Employers can ask employees to waive, in writing, their right under the Act to possess firearms in the employers' parking areas.
It is still too early to know how the courts will interpret the Act or respond to these theories.
Prohibiting Possession by Patients and Visitors
Banning patients and other visitors from bringing firearms onto the premises requires healthcare providers to take additional steps specifically described in the Act. Under the Act, "private establishments" may prohibit visitors, including permit holders, from bringing firearms onto their premises only if the establishment's operator has "made a reasonable request that firearms not be brought into the establishment." A "private establishment" is any building or structure or portion thereof that is owned, leased, controlled, or operated by a nongovernmental entity for a nongovernmental purpose. Although it is unclear from the Act, it appears that public establishments, including governmental healthcare entities, may not bar patients and other visitors from bringing firearms onto the premise because the Act only provides a method for private establishments to ban firearms.
For private establishments, the Act states that a "reasonable request" means the establishment operator has met all of the following requirements:
- Posted a sign at every entrance to the establishment containing the following language: [IDENTITY OF OPERATOR] BANS GUNS IN THESE PREMISES.
- The sign must be readily visible and within four feet laterally of each entrance with the bottom of the sign at a height of four to six feet above the floor.
- The lettering of the sign must be in black arial typeface at least one and one-half inches in height against a bright contrasting background that is at least 187 square inches in area.
- The requester or its agent must also have personally informed the person of the posted request and demanded compliance.
A person who fails to leave after a "reasonable request" is guilty of a petty misdemeanor and subject to a fine not to exceed $25 for a first offense but may not be required to forfeit his or her firearm. The Act prohibits private establishments from banning the lawful carrying or possession of firearms in a parking facility or parking area and prohibits landlords from restricting the lawful carrying or possession of firearms by tenants or their guests.
Some premises operators are using additional approaches to keep visitors, particularly vendors, from bringing guns onto their premises. These premises operators are amending their contracts with vendors, such as messengers, computer and equipment repair service people, and office supply representatives, to require that the vendors prohibit their employees from bringing guns onto the premises operator's premises.
Mounting Challenges to the Act
The Act has spawned legal challenges and prompted numerous entities to enact policies that appear at odds with the Act. Developments are occurring so quickly that it is difficult to keep pace with them but, as of the time this article was written, some of the challenges include:
- Approximately 50 religious congregations and several state-wide denominations are challenging some of the provisions of the Act as being unconstitutional. In June, the Hennepin County District Court granted an injunction against some of the Act's provisions, thereby allowing religious institutions to ban firearms from their premises without posting the signs and providing the personal notification required by the law. The religious institutions have sought a broader injunction in the Minnesota Court of Appeals regarding the provisions of the law that prevent private establishments from banning firearms in their parking lots and tenant space.
- In July, the University of Minnesota board of regents voted to prohibit students, employees, and visitors from carrying firearms on campus or at off-campus events, including sporting events at the Metrodome. Under the Act, universities are permitted only to prohibit students and employees from carrying firearms. The Minnesota Daily reported that the University of Minnesota's general counsel, Mark Rotenberg, said the Act does not deal specifically with the university and the regent's decision was based on the university's constitutional autonomy.
- In June, Minnesota Supreme Court Chief Justice Kathleen Blatz signed an order banning the carrying of firearms, other than by on-duty law enforcement officers, on Supreme Court and Court of Appeals premises. Chief judges in Hennepin and Ramsey counties have signed similar orders barring the carrying of firearms on premises, even by permit holders.
- County governments, including Hennepin and Ramsey county boards, have voted to ban firearms from county buildings.
These challenges attest to the controversy sparked - and questions raised - by the Conceal and Carry Law.
What's a Healthcare Provider to Do?
The good news for healthcare providers wishing to ban guns from their workplaces is that they can adopt and distribute policies to prohibit their employees from carrying or possessing guns in the course and scope of employment. Also, private healthcare providers may also bar patients and other visitors from bringing guns onto the premises by posting their premises and personally informing the visitors. While some of these requirements are cumbersome and, to some, chilling, strictly complying with them is the safest way to lawfully ban guns from the workplace.
The bad news for premises operators wishing to ban guns from their premises is that it appears they cannot ban guns from their parking areas. There are, however, compelling arguments that premises owners should be, and in fact are, able to ban guns from their own parking areas, despite the Conceal and Carry Law. Undoubtedly, the courts will have the final say.