Ep. 88: OSHA 101 for Small Business

Workplace safety and health law expert Felicia Watson joins Beth Milito, NFIB Vice President and Executive Director of the Small Business Legal Center, to explain how Occupational Safety and Health Administration (OSHA) inspections work and what small business owners need to know to avoid costly penalties. They also discuss resources available to business owners to stay updated on the latest OSHA rule changes. 

Resources: 

• See NFIB’s new OSHA Inspection Guide to prepare your small business. 
• View NFIB’s Legal Guide series for additional resources. 
• Watch the webinar with Felicia on June 3, 2026, at 12 p.m. ET and catch up on past webinars.  

If your small business has questions on legal or regulatory issues, you can reach us at info@NFIB.org. 

Please rate, review, or like this podcast to support small business issues. 

Transcript

SPEAKER_01 0:00

And so when you think about that, if your state has particular safety-related items, that's a great time to understand what those are and check with an OSHA lawyer that can help you make sure that you're squared away and you've got the plans that you need in place.

SPEAKER_00 0:15

The Small Business Rundown is the official podcast of the National Federation of Independent Business, the member-driven voice of small business. Every two weeks, a new episode offers resources for small business owners and information on relevant laws and regulations. NFIB and our members advocate to keep U.S. small businesses strong and independent in Washington, D.C., all 50 states, and the nation's courts.

SPEAKER_02 0:43

Welcome to the Small Business Rundown. I'm Beth Molito, NFIB Vice President of the Small Business Legal Center. On today's show, we're covering the latest employment law updates with our special guest, Felicia Watson, senior counsel at the law firm Littler Mendelssohn. Felicia, it's great to have you on the podcast. Thanks, Beth. Really happy to participate. Felicia has been a guest expert on the NFIB Legal Center webinar series and will be joining me again for another live webinar on June 3rd. We're looking forward to that. Felicia, can you start by telling me about your experience with labor and employment law?

SPEAKER_01 1:18

Yeah, sure. So I started working at the National Association of Home Builders more than 20 years ago, where I did a variety of different advocacy-related items, including developing strategies for small businesses. Most home builders are small businesses. So working on advocacy issues that affected them. This included writing comment letters, developing strategies for helping members respond to these proposed regulations, federal legislation, as well as sometimes state legislation that might affect small businesses. And also my background included, you know, meeting with members of Congress, participating in meetings with agency personnel, including OSHA and the Department of Labor, also the U.S. Trade Representative, Office of Management and Budget, OIRA, and embassy officials. So I have a pretty broad swath of advocacy-related activities, which also includes, you know, working with DOL and OSHA-related issues on behalf of people that are being regulated by these agencies with respect to workplace safety and health, independent contractor, that type of thing, silica heat variety of issues. Kind of run the gamut, really.

SPEAKER_02 2:30

Yeah, I know I joined you in some of those meetings over at the Department of Labor and over at the White House on some of those DOL initiatives. And I'm so happy that you are now at Littler and we still get to work together. It's very exciting and fun. So let's turn now to the topic at hand, the Occupational Safety and Health Administration. Can you tell us a little bit about OSHA and how it impacts small business?

SPEAKER_01 2:56

So the easy way to think about OSHA is, and we're in DC, so it's all about the acronyms, but the good way to think about OSHA is it's really the agency that's tasked with administering the Occupational Safety and Health Act of 1970. So the agency, Congress passed legislation, and the agency is the organization that actually develops the workplace safety rules, standards, regulations to implement the act to protect workers. That's really the goal of that agency. And so when you think of it from that perspective, it's always going to affect businesses, but it's also going to affect workers, employees of these businesses. And so that interaction is something to be very mindful of and to keep in mind when you as an employer are working on or tracking regulations that might be coming. It affects everybody in the United States. It's not just large behemoth employers. It also affects small employers as well. You could have as few as five people, but as long as you have employees, you will be covered by the requirements of the OSH Act. So that is something to keep in mind, regardless of your business size. And so I think that that is something that people need to be mindful of when regulations come out or guidance documents come out. They need to at least do what they can to stay on top of things, be aware. Oftentimes that's why organizations like NFIB are really good because they put out notices, press releases, and help their members figure out okay, how does this apply to me? So that's something that is important.

SPEAKER_02 4:24

Thank you, Felicia. So the bottom line is small business owners need to be aware of their requirements to keep a safe workplace for their employees. And so there's no small business exemption under OSHA.

SPEAKER_01 4:37

No, no, there isn't. The only time there's an exemption is if you're a sole proprietor and you have no employees.

SPEAKER_02 4:43

Okay. Pretty limited there. You have employees, you're covered by OSHA. So let's talk a little bit about OSHA inspections. And this is, I know, a scary topic for small business owners. How does this come about? And are there steps that a business should take to prepare for an OSHA inspection?

SPEAKER_01 5:01

So it can be a scary approach because when you think about it, you've got a government agency showing up on your doorstep. And despite the appearance of the government official, they're not really there to help you. Their goal is to identify are there any workplace hazards? Are employees' working conditions that put them at risk for health issues, safety issues? And so the best way that employers, large or small, can prepare for an OSHA visit is to understand the process, right? Don't be intimidated by it, but by the same token, don't just sit back and be really calm and casual about it. You need to understand the process that OSHA inspector will go through, why they're there for the inspection. That should be one of your first questions. If OSHA shows up on your doorstep, what is the purpose of their inspection? Now keep in mind there's a couple of ways that they'll show up. They maybe have received a complaint from an employee, or it could be that there was an accident that was reportable to OSHA. So let's just say somebody was seriously hurt using a piece of equipment on the work site. And it all has to be related to work. And so they were injured somehow, maybe they cut off the tip of their finger using a piece of equipment. That is something that is reportable to OSHA. It's considered an amputation. And so that is something that the agency takes very seriously. So if you report something like that, you can pretty much be guaranteed that they are going to show up. The question is, when are they going to show up? And so that is something to be mindful of. If you do make a report, you should anticipate that OSHA will arrive. So if it's an accident, it's reported, anticipate that they'll show up. Did you, as the employer, report it? So something to keep in mind too. Sometimes employers forget or don't realize that they actually have to report certain instances, certain injuries or illnesses that occur on their workplace. So if they don't report it, but let's say first responders show up, they're mandatory reporters. So the fire department shows up to take somebody away in the ambulance or to provide more than first aid, then you're definitely going to have likely a reportable incident. And so that is something to be mindful of is the timing on when you do that. There are specific requirements that you have to report within certain periods of time depending on the type of injury, illness that occurs. So employers need to understand that. Keep in mind too that OSHA doesn't announce their inspections. They're not allowed to tell you, hey, we're coming out to do an inspection. They will not give advance notice. And so one of the things that you can do is really have a plan in place before OSHA ever shows up. And I can get into that in just a second. And then the other thing is when OSHA does show up, you want to use the information that they give you to narrow the scope. Are they there because of an employee complaint? Employees will complain because maybe they feel like there's something unsafe. And so what is the purpose of the complaint? Are there one element, two elements, three areas that an employee might have identified? Find out what those are because that you can use as an employer to narrow the scope of what the inspector is going to be looking at. They don't have carte blanche to come in and get a tour of the facility. Don't ever give them a tour. Try and narrow that scope so that they are targeted and their inspection is targeted. So you understand what that is. And you have the ability as an employer to ask them why they are there? What are they looking at? If it isn't as a result of a complaint, you can definitely ask them the nature of the complaint. They're likely not going to tell you who complained. They don't have to disclose that, but try and get as much information about the complaint as you can. Oftentimes you can ask them for a copy of it. They're not going to give you confidential information. Keep in mind employees have the ability to report anonymously or to request that their name not be disclosed. And that's okay. You still want to figure out what's the nature of the complaint and how can you address it. So those are some important things to think about just preliminarily. And then have a plan in place when they show up, right? You want to know what you do before they get there. Designate somebody to greet the inspector. Identify who the staff person is, usually somebody from management, who will be escorting the inspector through the facility. Remember, I said it's not a tour. You want to take them as close to the area where they need to inspect as possible. You don't walk them all the way through the entire plant because, and why is this important? Because if they're walking along and they see something that's in plain view that's a violation, you could be cited for that, even though that's not why they're there. So it's kind of like the plain view doctrine, really. If they see it, they can cite you for it. So that's why you don't want to give them a tour. And that's not the purpose. The purpose is they're there to look at something specific. Those are some things to keep in mind before OSHA shows up. Have a plan in place and then follow it, designated somebody to do it, to escort them, and then take pictures. If they take pictures, you take pictures from the same area. They will anticipate that you are going to be doing that because you're not always going to get copies of the pictures immediately after the OSHA inspector leaves. So make sure that you understand what they're focusing on, take notes. If you can't do it yourself, have another employee accompany you who can take the pictures while you're talking with the inspector.

SPEAKER_02 10:22

Felicia, are there any common mistakes you see businesses make when dealing with OSHA inspections? So this might be after the fact when you get the phone call, now that you are representing businesses, without disclosing any of your clients, obviously, but anything that you're like, oh no, I can't believe that you XYZ fill in the blank.

SPEAKER_01 10:41

Sure. So I think one of the biggest mistakes employers make, and it's not intentional, uh, and it's not designed to hide anything, I think they don't do maybe walkthroughs of their businesses as often as they could or should. Treat it like a find and fix approach, right? So let's say you have an environmental, healthy, and safety person on staff. Now, not all businesses have this, but designate someone to do a walkthrough, someone who understands the regulations that apply to your business and have them do a walkthrough once a week, maybe on Monday morning, and have a checklist. If they see things that need to be corrected, document that it's been corrected immediately, or if you need to order a new part, or maybe the lock on the back gate doesn't work, flag that, get that corrected by a certain date, those types of things. Keep a checklist, demonstrate that you are being proactive with your work site, because that shows that you're attentive and you're not just ignoring things that need to be addressed. Another mistake that employers make and managers uh in particular, they're trying to be helpful. And so if the OSHA inspector is asking a series of questions and then they stop talking because you've answered their questions, you stop talking. Don't keep talking. Just because the OSHA inspector is quiet does not mean you need to fill the void. Because people get nervous with silence, and it's understandable because you've got this government official on your job site doing an inspection. And so people feel like they need to jump in and volunteer things. Don't do that. That can be a mistake because you could inadvertently say something that you didn't mean to say, or it's taken out of context because you in your head, your employee in their head knows what they're trying to say, but maybe because they're nervous because the government is there, they don't say it properly, right? So don't volunteer stuff. I think that is something that can be very helpful and important to keep in mind. Just because the person is quiet doesn't mean you have to keep talking.

SPEAKER_02 12:41

That's great advice, Felicia. We'll be right back with more from Felicia on changes to OSHA rules.

SPEAKER_00 12:52

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SPEAKER_02 13:22

So, Felicia, can you tell us about any changes that might be coming down the road from OSHA?

SPEAKER_01 13:27

You know what, that's an easy and a hard question at the same time. And the reason that's easy is because we know that the current administration is focusing on a deregulatory approach. They're trying to eliminate duplicate regulations, regulations that have been in place for a long time that aren't doing anything. It's not uncommon, regardless of the administration that comes in, to do a look back, right? They'll look back, they'll see what's already out there, they'll look at guidance documents. Is this stuff old? Is it outdated? Is it not serving its intended purpose? Does it need to be updated? Those are the types of things that this administration is looking at. This administration is also looking at deregulatory efforts. So there are some things that they're examining. They put out a bunch of Federal Register notices seeking comments on streamlining respiratory protection, streamlining how certain chemicals are dealt with. Actually, there were a number of them, I think 15-ish. That comment period for all of those closed in November of 2025. So the agency is working through those right now. One item that is out there that is still pending is the OSHA's proposed heat rule on indoor and outdoor workplaces, heat illness and injury prevention in outdoor workplaces. And that is something that I think all employers, regardless of whether or not you have indoor workers or workers that are outdoors or both, you need to pay attention to for a couple of reasons. One, Federal OSHA has felt that this is something that's very important. They've talked about this for a number of years. There are a lot of requirements in there. You have to have a written heat plan, you have to have lots of training, 16 different topics. If you're over a certain size, and this kind of hits the small business impact, if you have 11 or more employees, you have to have a plan in writing, and you have to have an identified by name heat safety coordinator. If you have 10 or fewer employees, you don't have to have it written, and you don't have to designate who the heat safety coordinator is. But that raises the question, how are you going to demonstrate that you're in compliance if you don't have something in writing? Right? That's a double-edged sword. Oh, great, I don't have to have a written plan, but wait a minute, how am I going to show that I've trained my employees and they know what to do? And here it is. So that's one of those things I think for small businesses to keep in mind. And while Federal OSHA doesn't have, they haven't put out a final rule yet, they've got more than 24,000 comments in the regulatory docket to look at. So that's going to take them a little bit to weigh through, but you should pay attention to that because even though there's no federal regulation, they do have a national emphasis program on heat, which has a lot of the same types of things that were in the proposed rule. So an ocean inspector is going to go out on your job site as we head into April. And as temperatures are rising around the country because it's getting into that spring and summer season, what kind of procedures do you have in place for employees? Have you trained them on recognizing heat illness? Do you have procedures in place for them to have water rest shade, rest breaks when they need it? Do they know how to recognize these things? So even though there's no federal rule, you still have to pay, be mindful of this because as an employer, you have to provide a safe workplace. The other element of this is not just what the feds are doing, but also what is happening at the state level. So you have several states that have issued proposed legislations at the state level. So statutes, not regulations. And so they're not waiting for federal OSHA. You've got Rhode Island that just had hearings yesterday to talk about their extreme heat and extreme cold proposed state legislation. And then you've got Colorado that's introduced something similar. You've got Virginia that has just passed the Senate and the House, and that is waiting for the governor to sign legislation. Now, Virginia is a state plan state. That means that OSHA has approved their state plan, but they didn't run this through the regulatory process. They ran this through the state legislature. So we'll have to see how that will play out. But for small businesses particularly, you need to pay attention to what's going on in your state because maybe federal OSHA hasn't done something yet, but your own state may have. There are, I think, seven or nine states that already have their own form of heat regulations in place. So understand those, understand how those apply to you. And if nothing is in your state, do pay attention to OSHA's national emphasis program. There's also a lot of really good guidance documents on OSHA's website, depending on what your industry is in. And so while the deregulatory efforts focus on everybody thinks regulations, it also targets guidance documents that need to be improved or updated. So some of those may be withdrawn. Letters of interpretation are another way to get a good idea of what OSHA is looking at. And this administration has emphasized that they're willing to and interested in getting letters of interpretation out to help regulated industries. So that might be another avenue for people to engage with the agency and get more information to help them in their businesses.

SPEAKER_02 18:20

So speaking of helping businesses, this is a great time to turn and talk a little bit about resources for small business owners, including when a business should contact an attorney for assistance with an OSHA issue. Any thoughts on that, Felicia?

SPEAKER_01 18:36

I would say you don't always have to wait to be contacted by OSHA to reach out to an OSHA attorney. And I say that because sometimes it's helpful to make sure that your policies and procedures dealing with OSHA and inspections and safety are up to par. And I say that you've got several states, as I mentioned earlier, that have their own state plans: California, Washington, Nevada, Maryland, where they have certain requirements that you have to have in place. Nevada, for example, requires you to have a written safety plan. Washington state requires all employers to have an accident prevention plan. And so when you think about that, if your state has particular safety-related items, that's a great time to understand what those are and check with an OSHA lawyer that can help you make sure that you're squared away and you've got the plans that you need in place. Now, that said, when OSHA shows up, understand what the inspection is. You don't always have to have an OSHA lawyer out with you when they do the inspection. If it's a serious incident or you had a fatality, I would recommend or suggest that that would be the time that you would want an OSHA attorney to be there when they do the inspection. Because if nothing else, they can help ensure that the OSHA inspector focuses on the scope of the inspection, that they don't impermissibly expand the scope, and that they help the employer understand next steps, what's going to happen after the inspection is done, how to handle document requests. That is something that always comes up following an OSHA inspection, is they will give the employer a list of documents that they would like copies of. Well, so they ask for a copy of your lockout tag out plan, and that's built into your safety plan. Well, do you give them all 200 pages of your safety plan, or do you just give them the lockout tag out portion, right? That's where a safety lawyer, an OSHA lawyer, can actually help you navigate. You don't give them more than they asked for, but you also want to be responsive and give them the documents that they have requested. You also need to make sure that your OSHA logs are up to date, your 300 log, your 300A, which is the summary of the accidents. The 300 lists all the accidents that might or reportable injuries or illnesses that might have occurred on the job site. You may not have any for the years that the OSHA inspector asked for, but you do need to have those logs ready to go in case they do request some. Usually they'll go back three to five years. And oftentimes what I'm seeing now with clients is they're asking for current 2026 up to date. So from January to whatever the date that they make their document request, they want those lists too. And so an OSHA lawyer can help you navigate those document requests and ensure that you are responding, but you're not giving them more than they asked for. And then also keep in mind that any OSHA inspection, any document requests are subject to the Freedom of Information Act. And so an OSHA lawyer can help make sure that you mark those as confidential business or trade secrets so that not just anyone can request a copy of your own business documents, your trade secrets, that type of thing. So a couple of different ways, proactive and reactive. We always like the proactive approach because we can help employers get ready in case something happens, but also help them with compliance. I think that's something that's really important is making sure that we can work with employers so that they're Plans are compliant, their companies are compliant. Nobody wants to have an employee injured, right? That doesn't help anybody. It doesn't help the employer. It doesn't help the business. The employees affected, maybe not only the employee, but their family. Everybody wants to have everyone go home at the end of the day. And I think sometimes having an OSHA lawyer that can come in and work with you and help you with your compliance can really improve your business as a whole. So you don't have these risks. I think that is something that's that could be really important. So don't wait till it's bad.

SPEAKER_02 22:30

Right. That's great information and great advice. And I'm looking forward to digging into this a lot more with you on our June 3rd webinar, Felicia. Thank you so much. I think we're going to drop some of these resources that you mentioned in our show notes today, too. And I want to point out that NFIB has also been tracking the proposed federal OSHA heat standard very closely. And we can drop more information about that in our show notes. And we actually just did a podcast on that very topic, too. So very glad that you mentioned that today, Felicia. Before we go, is there anything else you'd like to add?

SPEAKER_01 23:04

You know, I think one thing that is important for employers to consider, because there's so many different aspects to running a business, right? You've got all of the state requirements, you've got all the federal requirements that kind of overlay that. Sometimes there might be conflicts between policies or regulations. And I think one thing that's important to be mindful of, even if you're a small business but you're operating in a couple of different states, take the most stringent requirements and try and work towards those so that there's no gaps in what you have. And again, an OSHA safety lawyer can help with those questions. So just some things to think about. That's great. Thank you, Felicia, for joining us today. Thank you so much for the invitation. I enjoyed it, Beth.

SPEAKER_02 23:51

This episode's show notes include a link to the NFIB Small Business Legal Center's new printable OSHA legal guide, which includes some helpful resources for small business owners. You can also find a link to the NFIB Small Business Legal Center's webinar series, where we'll host Felicia for an OSHA-focused webinar on June 3rd. That's available at nfib.com slash webinars. If your small business has questions on legal or regulatory issues, you can also reach out to us by emailing info at nfib.org.

SPEAKER_00 24:23

Thanks for joining us for this week's episode of the Small Business Rundown. Your continued support helps us amplify the issues that matter most. If you like this episode, please help small business owners find the podcast by giving it a rating, like, or review. You can find us at nfib.com and on YouTube, X, LinkedIn, Instagram, and Facebook.