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Old January 26, 2009, 11:05 AM   #1
Big Don
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FedOSHA to OK judge: Employees can have guns on work property

Since I couldn't bump this old post
(, I'll start a new thread with some good news: Sanity prevails in DC, at least for a while

Federal act does not pre-empt state gun law
January 21, 2009

OKLAHOMA CITY – The federal agency in charge of workplace safety does not believe the Occupational Safety and Health Act pre-empts an Oklahoma law prohibiting employers from forbidding the storing of firearms in workers’ cars, according to a letter filed in an appeal with the 10th U.S. Circuit Court of Appeals.

Oklahoma has appealed an October 2007 federal judge’s ruling, which said the 2004 state law conflicts with federal worker-protection laws, including the OSH Act.

The letter stating the Occupational Safety and Health Administration’s position, from Thomas Stohler, acting assistant secretary of labor for OSHA, to state Rep. Jerry Ellis, principal author of the Oklahoma law, was filed on the state’s behalf by Washington, D.C., attorney Charles J. Cooper.

Cooper said Stohler’s letter makes clear that the federal law does not pre-empt the Oklahoma statute.

“The district court’s judgment thus no longer has any legal support and should be reversed,” Cooper said in a letter to 10th Circuit Court Clerk Elisabeth A. Shumaker.

In the OSHA statement-of-position letter, Stohler said, “[W]e do not believe that, as a general matter, the general duty clause of the OSH Act pre-empts your state’s law.”

The clause requires employers to maintain workplaces free of “recognized hazards.”

Stohler said the OSHA law specifically preserves states’ authority to regulate occupational safety and health issues on which no OSHA standard is in effect.

“Since no OSHA standard specifically governs the issue of the presence of firearms in vehicles in company parking lots, states generally retain broad authority regarding individual rights under the Second Amendment to the U.S. Constitution, or state equivalent constitutional provisions, as they affect employers within federal OSHA’s jurisdiction,” Stohler stated.

“Gun-related violence is not a recognized occupational hazard in industry as a whole, under normal working conditions,” he wrote. “Therefore, state laws protecting an employee’s right to transport and store firearms in a locked car on employer premises would not on their face impede the employer’s ability to comply with the general duty clause.”

Stohler said employers are not required to implement policies to protect against random, unforeseeable acts of violence.

He said the agency has addressed the issue of voluntary firearms restrictions in the fields of health care and social services and late-night retail establishments, but not the specific issue of firearms in locked vehicles on company property.

The law was challenged in October 2004.

Before it took effect, U.S. District Judge Sven Holmes blocked its enforcement while the court case continued.

The statute was amended in 2005, providing employers immunity from liability if a gun in a worker’s vehicle is used by a third person to injure or kill a person at work.

U.S. District Judge Terence Kern ruled in October 2007 that the Oklahoma law criminally prohibits an effective method of reducing gun-related workplace injuries “and cannot coexist with federal obligations and objectives.”

The state appealed Kern’s ruling in November of that year.

Several businesses, the Brady Center to Prevent Gun Violence and at least two safety organizations joined in the lawsuit challenging the Oklahoma law. The National Rifle Association has filed legal documents in support of the statute.

Copyright © 2009 The Journal Record All Rights Reserved
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