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Liability Risk

Allowing Guns in the Workplace Introduces Liability Risk

Having an armed manager adds on-the-spot protection, but guns in the workplace could open companies to liability risks.
By: | May 1, 2018 • 5 min read

The U.S. saw 54 mass shooting incidents in the first three months of 2018. The Gun Violence Archive, a nonprofit that collects and maps gun-related violence in the U.S., reported 3,619 deaths and 6,315 injuries in that same timeframe.

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“Workplace violence incidences are on the rise in the United States,” said Emily Loupee, Los Angeles-area vice president, management liability practice group, Gallagher. “According to OSHA, two million workers in America are victims of workplace violence each year. A November 2017 CNN analysis reported that despite having only 5 percent of the world’s population, the U.S. accounted for 31 percent of the public mass shootings between 1966 and 2012.”

“It’s the number one killer of women in the workplace and third overall,” said Mark A. Lies, labor attorney, Seyfarth Shaw LLP.

From movie theatres to churches, elementary schools to the workplace, gun violence knows no bounds. Many have spoken out about gun regulation and reform, mental health screenings, raising the legal gun-purchasing age, arming teachers and so on.

The hard truth, however, is that change takes time. While the country waits for political action, violent incidents can still occur. Companies willing to take matters into their own hands are looking for ways to prevent, prepare for and mitigate the risk of an active shooter.

Firearms in the Workplace

One solution: arming managers.

“This is a newer consideration for companies that is arising from the large number of incidents occurring both in the public domain and in the workplace,” said Kim Auchstetter, the Chicago-area executive VP of retail property/casualty brokerage operations, Gallagher.

And while the idea itself comes with controversy, it isn’t without its merits. A Gallagher-published article, entitled “Arming Managers With Guns?” and written by Lies, considers advantages and disadvantages of the proposal.

The biggest argument for companies allowing managers to carry a gun is that, in the event of an active shooter, the manager would have a firearm available to protect themselves and the workers.

“It will be interesting to see how the standard markets react to guns in the workplace. Some may decline to provide a quotation and others may seek reinsurance to mitigate their risk, which could increase the cost of insurance for businesses.” — Kim Auchstetter, executive VP, retail property/casualty brokerage operations, Gallagher

“You have someone on the spot. Sometimes it can take the police time to get to a place. That’s critical time,” said Lies. “Somebody who is trained can stop an incident right there.”

Lies, however, called this a “limited advantage,” because any armed manager needs proper permits to own a gun. And a firearm owner identification card and a concealed carry permit do not grant managers the authority to bring firearms into the workplace; the employer would need to set up the proper channels for a gun to be present at work.

First step, Lies said, is to review federal and state law. Lies also suggested that if an employer chooses to allow firearms at work, they should consider requiring copies of their managers’ permits on file.

However, having proper documentation and the law on the employers’ side isn’t always enough.

Edward Zabinski, area senior vice president, Gallagher

“The manager is not a sworn law enforcement officer, so the legal immunities that such officers have for liability to themselves and the employer will not attach,” Lies wrote in the article.

If a manager were to use a firearm on the workplace premises to stop a threat, they would be relying primarily on their inherent right to self-defense. Additionally, the manager could be seen as acting as an agent of the employer, which opens the company to potential agency liability claims if an incident occurred.

“From an insurance and risk management perspective, one of the biggest issues with arming [managers] is the increased potential liability you can face as an organization,” said Auchstetter. “This exposure can also limit — or potentially completely eliminate — the number of admitted insurance carriers that will agree to underwrite a company if they begin arming their managers with firearms.”

“If I were an insurer, I would want to know about the manager [before agreeing to insure the company],” said Lies. He suggested employers should ask managers interested in carrying a gun to take a psych evaluation.

“In my experience,” he said, “many employers aren’t involved in that yet.”

It’s difficult to assess how an individual might react in a high-stress moment like facing an active shooter. A psych evaluation can give just a hint of what a manager is capable of doing.

The permits show “they can handle a weapon,” Lies said, “but when it comes down to a stressful situation, are they psychologically ready? Will they make the right decision? Are they trained in reading another person’s behavior? Will they tell the shooter to surrender and wait or will they shoot?”

Split-second judgment calls can distress even seasoned police officers trained in such situations. If a manager were to exceed the scope of reasonable force or act negligently or recklessly, the company could be liable for civil damages for personal injury, wrongful death, emotional damages, punitive damages and more.

“It will be interesting to see how the standard markets react to guns in the workplace. Some may decline to provide a quotation and others may seek reinsurance to mitigate their risk, which could increase the cost of insurance for businesses,” Auchstetter added.

Planning Ahead

Active shooter/malicious acts, workplace violence and terrorism coverages are just some of the products geared toward helping insureds in the event of a workplace shooting.

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“Many insurers offer endorsements for assault or workplace violence on kidnap and ransom insurance policies for 15 to 40 percent additional premium,” said Loupee. “The policies cover fees such as lost business income, security, rest and rehabilitation, public relations, crisis response, lost wages, counseling and death benefits.”

“These coverages also help to address the gray areas that can be present with traditional insurance following these incidents,” Auchstetter said.

Edward Zabinski, Chicago-area senior VP-loss control and safety services, Gallagher, said companies can start the conversation by creating policies preventing workplace violence and harassment, establishing a zero-tolerance code of conduct, addressing conflicts quickly to prevent escalation, conducting workplace violence and harassment prevention training, and creating safe channels of communication so that unwanted behavior can be addressed promptly. &

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]