In the latest Unity version (5.4.0b23), OVRPlugin.hswVisible always returns false even when the Health and Safety Warning is shown. Looking at the forum, I found it used to be a problem but was fixed last year. I've made a new project to make sure the problem wasn't coming from my end and the issue is still present. Is there another way to query the HSW status?
Unfortunately, this is a known issue that probably won't be solved soon due to removal of that status bit from LibOVR. You can, however, use OVRManager.hasVrFocus or the events FocusLost and FocusAcquired to check whether your app or something else, such as the HSW or Universal Menu has focus.