In the last two months, the healthcare industry has seen both federal and state efforts to further regulate healthcare worker safety. Stakeholders and other jurisdictions are keeping an eye on these developments, which could spread to other states, as well.

While the federal legislation is focused on reducing workplace violence at healthcare facilities, an initiative in California will decide what additional regulations should be imposed to remove surgical plume and limit the exposure of healthcare professionals to surgical smoke in the state’s operating rooms.

What are these hazards?

On March 8, 2018, thirteen Democrats in the U.S. House of Representatives introduced a bill aimed at reducing the levels of workplace violence at healthcare facilities. The bill is sponsored by Congressman Ro Khanna, who represents California’s Santa Clara and Alameda counties.

Unlike other industries where workplace violence may arise between coworkers, in the healthcare profession, violence more often is inflicted by patients against their providers – nurses and residential care providers in particular.  When the Government Accountability Office (“GAO”) analyzed the injury rate for healthcare workers due to workplace violence in 2016, the GAO concluded that the nonfatal workplace violence injury rate for healthcare workers was 5 to 12 times higher than that estimated rate for American workers overall.

A few weeks earlier, February 15th, the California Occupational Safety and Health Standards Board conditionally granted a petition for rulemaking filed by the California Nurses Association and National Nurses United (“CAN/NNU”) and ordered the Division of Occupational Safety and Health (“Division”) to convene a committee to consider the development of additional regulations.

Surgical plume/smoke is a term for the emissions or byproducts from the use of lasers or electrosurgical units. Federal OSHA reports that surgical plumes have contents similar to other smoke plumes, including carbon monoxide, polyaromatic hydrocarbons, and a variety of trace toxic gases.  According to the National Institute for Occupational Safety and Health, these plumes could contain biological hazards such as viruses, or toxic chemical vapors including benzene, hydrogen cyanide and formaldehyde. While some remain skeptical about the health risks (not to mention the sales pitches from smoke evacuation equipment manufacturers), other states are now looking into the research and debating whether to enact legislation to limit exposure to surgical plumes.

California continues to be at the forefront of healthcare safety regulations

While workplace violence and surgical plumes may seem unrelated at first glance, it is worth noting that California and CAN/NNU are both playing key roles in these governmental efforts. Congressman Khanna’s workplace violence legislation is based heavily on California’s existing workplace violence regulations (Tit. 8, § 3342).  California’s workplace violence regulations went into effect in January 2017 and are one of the first regulatory responses to the problem of workplace violence in the healthcare sector. CAN/NNU was a strong supporter of California’s new regulations.

CAN/NNU also filed a petition for rulemaking in California, asking the agency to take substantive steps to develop regulations to address the potential hazards posed by surgical plumes. The Cal/OSHA Standards Board approved the petition, and directed the agency to consider in its analysis: the proper operation and upkeep of protective equipment; engineering controls; and local exhaust ventilation requirements.

What’s ahead for the safety of healthcare workers?

In today’s political climate, there is little likelihood that a piece of federal legislation, sponsored solely by Democrats in one house of Congress is going to become law. However, Congressman Khanna’s legislation and California’s workplace violence regulations could serve as templates for other states to follow in developing their own laws and regulations. Case in point, Massachusetts and Pennsylvania recently introduced workplace violence bills in their legislatures.  Accordingly, when California assembles its committee to analyze potential surgical plume regulations, the healthcare sector would be well served if the state solicits inputs the full spectrum of providers and stakeholders, because the committee is likely to be developing a solution that other states will emulate.

Even if the proposed laws are not ultimately enacted, oftentimes they prompt stakeholder discussions which lead to changes in workplace policy. For this reason, healthcare providers should consider reviewing their current policies on workplace violence prevention and elimination of surgical smoke in operating rooms, as we see these both as hot topics in healthcare regulation that will continue at the forefront of policy discussions.


This post is also featured on our Safety Law Matters blog.