The Operative Sentence

State surgical-smoke laws mostly require a written policy, not a device — and the published count of twenty is out of date

Sixteen of the seventeen operative mandates oblige a written policy rather than equipment, and two states on every tracker have no mandate at all.

DECIDED BY: your state’s statute or licensing rule → your facility’s own written policy → your accreditor. Not OSHA.

In brief

• OSHA has no standard for surgical smoke and says so on its own topic page, in those words.1
• Sixteen of the seventeen operative state mandates require a facility to adopt — sometimes adopt and implement — policies. Kentucky’s licensing regulations are the one instrument we read that commands a facility to make use of a system.78
• The tracker the field relies on lists twenty states, carries no bill numbers, no dates and no last-updated stamp, and does not include Maryland or Michigan, both of which enacted in 2026.61617
• California and Georgia are on that list. California’s statute directs a state agency to propose a rule; Georgia’s requires hospitals and ambulatory surgical centres to adopt policies and never uses the word evacuation.1918
• Of the enforcement provisions we read, five of seven name a route — a survey, an inspection, adverse licensing action, a reporting duty, or a fine. We found no published tally of citations issued under any of them.910131512

The question that reaches an OR educator every legislative session is short and practical: is my hospital legally required to give me a smoke evacuator? The answer usually offered is a colour-coded map with a number on it, and the number is doing work the underlying statutes will not support. Twenty-two states have enacted a surgical-smoke law.21 What those laws command differs so widely that the count is nearly the least informative fact about them.

This article reads the instruments. Every quotation below was pulled as raw HTML or PDF from a state legislature, an official code publisher or a federal agency, de-tagged locally and read directly; nothing here came from a tracker or a summariser. Eleven of the twenty-two states were re-retrieved for this page — California, Connecticut, Georgia, Kentucky, Louisiana, Maryland, Michigan, North Carolina, Ohio, Rhode Island and Washington — along with the federal material. Rows, dates and instrument numbers for all twenty-two are in Register C, which is reviewed twice a year.

The federal layer is empty, and OSHA says so in writing

Advocacy pages and equipment marketing tend to open at the state level, which leaves the impression that the states are filling in detail on a federal frame. There is no federal frame. OSHA’s own topic page for laser and electrosurgery plume contains one sentence under the heading Standards.

The same page carries a sentence that advocacy material almost never reproduces, and it cuts against the strongest version of the case for legislation.

Surgical plumes have contents similar to other smoke plumes, including carbon monoxide, polyaromatic hydrocarbons, and a variety of trace toxic gases. As such, they can produce upper respiratory irritation, and have in-vitro mutagenic potential. Although there has been no documented transmission of infectious disease through surgical smoke, the potential for generating infectious viral fragments, particularly following treatment of venereal warts, may exist.

Read the full page

Both halves of that paragraph are load-bearing and they point in opposite directions: the same agency, on the same page, records a chemical and irritant hazard and declines to record an infectious one. A reader building a case at their own facility is better served by the irritant and mutagenicity language, which OSHA states affirmatively, than by the transmission argument, which it states in the negative.

Two letters of interpretation say the same thing at greater length. In 1996 a perioperative nursing educator wrote to OSHA asking, in her own words, for a letter “for documentation purposes” stating whether a specific standard mandated evacuation of surgical smoke. The reply of 18 April 1996 runs to four short paragraphs: OSHA has no specific standard for inhalation hazards from surgical smoke; the bloodborne pathogens standard exists and a copy was enclosed; and where no standard addresses a hazard, the General Duty Clause may be cited, only where the hazard is serious, recognised and feasibly abatable.2 Twenty years later, on 7 October 2016, the Directorate of Enforcement Programs answered a dentist’s identical question and named four hooks rather than one: section 5(a)(1), and standards 1910.132 on personal protective equipment, 1910.134 on respiratory protection and 1910.1000 on air contaminants.3 The 2016 letter is the more useful of the two, and it is worth noticing what it does not include.

The count that circulates, and the four ways it is wrong

The most-cited tracker in this field is AORN’s. We retrieved its Surgical Smoke-Free OR page on 6 August 2026. Its list sentence reads: “Twenty states — Arizona, California, Colorado, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Virginia, Washington and West Virginia — have enacted surgical smoke evacuation legislation.”6 The page carries no bill number, no chapter or public-act number, no effective date, no compliance deadline and no last-updated stamp.

AORN’s sentence is carefully worded — enacted legislation, not require evacuation — and the organisation that campaigned for these bills is entitled to count them. The trouble is downstream. The list gets copied into vendor pages and compliance summaries as a requirement, and by the time it reaches an OR manager it has become a legal conclusion about twenty jurisdictions. It is wrong in four directions at once, and they do not cancel out.

Two states have been added since AORN’s twenty. Maryland enacted Chapter 794 of the Laws of 2026, approved by the Governor on 26 May 2026, and Michigan enacted Act 47 of the Public Acts of 2026, approved 21 July 2026 and filed 23 July 2026. Neither imposes a duty on a facility yet. Michigan’s section is worth quoting because it is the only one of the twenty-two that is a hybrid.

Beginning 1 year after the effective date of the amendatory act that added this section, a health facility or agency that provides a surgical procedure using heat-producing equipment that is likely to generate surgical smoke plume shall develop and implement a policy that requires the use of a surgical smoke plume evacuation system during a procedure described in this subsection.

Read the enrolled Act

The duty is to develop and implement a policy, and the policy’s required content is specified: it must require use of a system. It starts one year after the effective date of 23 July 2026.17 Maryland’s command is close to the same form — “by January 1, 2028, each health care facility that performs surgical procedures shall adopt and implement policies that require the use of a smoke evacuation system during a surgical procedure that may generate surgical smoke” — with the Act taking effect on 1 October 2026 and the facility deadline fifteen months after that. Its covered-facility definition is the broadest we read: hospitals, limited service hospitals, related institutions, ambulatory surgical facilities and freestanding medical facilities.16

West Virginia is the fourth category and the one we could not close. Its statute directs the Office of the Inspector General to propose rules for legislative approval; the facility duty would arrive in that rule, and we could not establish from primary text that the rule was ever promulgated. We are uncertain whether West Virginia has an enforceable facility-level requirement today; the evidence is very low certainty, because the question turns on a document we have not read. It ships as Not checked on our register.

Sixteen of the seventeen require a document

This is the finding, and no published tracker states it. Rhode Island, Colorado, Illinois, Connecticut, Kentucky, Oregon, New Jersey, New York, Louisiana, Missouri, Ohio, Washington, Arizona, Minnesota, Virginia, North Carolina and Delaware have operative mandates. Of those seventeen, sixteen impose the duty as adopting — sometimes adopting and implementing — policies.21 Washington’s is the cleanest statement of the form.

Ohio’s hospital section is the same shape with a content requirement attached: each hospital offering surgical services “shall adopt and implement a policy designed to prevent human exposure to surgical smoke during any planned surgical procedure that is likely to generate surgical smoke,” and “the policy shall include the use of a surgical smoke evacuation system.”11 Rhode Island, the first state to legislate, requires hospitals and freestanding ambulatory surgical facilities to “adopt policies to ensure the elimination of surgical smoke by use of a smoke-evacuation system,” and adds something no other statute we read contains: a duty to report to the department of health, within ninety days of the act’s effective date, that the policies have been adopted.12

Louisiana sits at the weak end and the gap between the introduced bill and the enacted Act is the reason to read the primary text rather than a summary of it.

B. Healthcare facilities licensed pursuant to this Chapter which provide any surgical procedure using heat-producing equipment, including but not limited to electrosurgery and lasers, shall adopt and implement policies for a surgical smoke plume evacuation plan to mitigate and remove the surgical smoke plume.

C. The Louisiana Department of Health shall verify compliance with this Section through onsite surveys that are specific to surgical services, full licensing surveys, full recertification surveys, and complaint surveys if allegations specific to surgical services are alleged.

Read the enrolled Act

The enacted command is a policy for a plan. The phrase “evacuation system” does not appear in it — the Act uses the term only in the section heading and in the plan’s name — and secondary write-ups that quote a Louisiana requirement to use an evacuation system are quoting the introduced bill, not the law. Subsection C is the counterweight: Louisiana is one of the few that names the mechanism by which anyone would ever find out.

The one state that says use it

Kentucky is the exception, and the exception is in a licensing regulation rather than in the statute everybody cites.

In accordance with KRS 216B.153, a hospital that utilizes an energy-generating device shall make use of a smoke evacuation system: a. That effectively captures and neutralizes surgical smoke at the site of origin and before the smoke can make ocular contact or contact with the respiratory tract of the occupants of the room; and b. During any surgical procedure that is likely to produce surgical smoke.

Read the full regulation

The parallel provision for ambulatory surgical centres, at 902 KAR 20:106 Section 4(8)(a), is word-for-word the same with “center” substituted for “hospital.”8 The hospital regulation also requires a separate written policy — a smoke evacuation policy that “shall be available to staff in all areas where surgical smoke is generated”7 — so Kentucky has both duties where the other sixteen have one.

The citation everyone reaches for is wrong. KRS 216B.153, as created by Senate Bill 38 of the 2021 regular session, directs the cabinet, not a hospital: on or before 1 January 2022 the cabinet “shall promulgate administrative regulations in accordance with KRS Chapter 13A requiring a health facility licensed under this chapter that utilizes energy generating devices to make use of a smoke evacuation system during any surgical procedure that is likely to produce surgical smoke.”9 That is a rulemaking instruction. A hospital does not violate it; the cabinet would. Anyone citing KRS 216B.153 as the source of a Kentucky facility’s obligation — and a great deal of published material does — is citing the wrong instrument, and would find nothing in it if a surveyor asked them to read it aloud.

California and Georgia are on every list and require no evacuation

These two are the correction the field most needs, and they fail differently.

California’s Labor Code § 144.9, added by AB 1007 and effective 1 January 2024, is a rulemaking statute of the same species as Kentucky’s — except that California’s implementing regulation does not yet exist. Subsection (b)(1) gives the Division of Occupational Safety and Health until 1 December 2026 to submit a proposed regulation to the Standards Board; subsection (c)(1) gives the Board until 1 June 2027 to consider it for adoption.19 Cal/OSHA’s own rulemaking page, retrieved 6 August 2026, shows the process still at the pre-rulemaking advisory stage: a revised discussion draft dated 24 April 2026, comments invited by 1 June 2026.20 No California health facility is under a plume evacuation duty today.

Georgia is a different failure. Its statute is short enough to print in full.

(a) As used in this Code section, the term ‘surgical smoke’ means the gaseous by-product produced from the interaction of tools or heat-producing equipment used for dissection and hemostasis during surgical or invasive procedures.

(b) Each hospital and ambulatory surgical center shall adopt policies for the reduction of human exposure to surgical smoke.

Read the bill as passed

That is the whole of it. The words evacuation, evacuation system and smoke evacuator appear nowhere in the enacted Code section. The bill as introduced would have required a system; the requirement was removed before passage, and the trackers are describing the introduced version. Georgia is a policy state with an unusually loose policy standard — reduction of exposure, by unspecified means — and it is not a device state.

Who is covered, and who is not

Every one of the seventeen operative mandates is addressed to licensed hospitals and licensed ambulatory surgical or outpatient surgical facilities.21 None of them reaches a physician office, a dermatology practice or a medical spa — settings where electrosurgery and ablative lasers are used constantly and where the person holding the handpiece is often the only staff member in the room. Oregon is the one state whose statute names additional settings, adding home health agencies and home hospice programs.21

Inside that scope, the drafting varies in ways that matter to an individual reader. Connecticut is the only one of the seventeen with a procedure-type exclusion written into the definition itself: “‘Surgical smoke’ does not include the by-product of the use of an energy-generating device during a gastroenterological or ophthalmic procedure, which by-product is not emitted into the operating room during surgery.”14 Missouri’s section reaches only Joint Commission-accredited facilities, so a non-accredited Missouri hospital or ambulatory surgical centre is outside it; Virginia covers hospitals and not ambulatory surgery centres, and runs through the Board of Health’s regulations rather than directly on facilities.21

North Carolina’s drafting answers a question the facilities and biomedical-engineering side asks first, and it is rare to see a legislature address it in the text at all: the definition specifies “stand-alone, portable equipment” and adds that “this equipment is not required to be interconnected to the hospital surgical ventilation or medical gas system.”15 A note for anyone reading North Carolina’s codified page: on 6 August 2026 § 131E-78.4 carried only the S.L. 2025-37 text, with no sign of the 2026 session-law sentence providing that an assistant-held device meets the definition. The codified page lags the session law, and a reader relying on it alone would miss an amendment that is already law.

What happens if a facility does nothing

The common claim is that these statutes have no teeth. That is not what we found in the ones we read, and the honest version is narrower and more useful.

We read the enforcement provisions of seven of the seventeen, and five name a route. Kentucky’s regulations point to KRS 216B.990(8), which SB 38 amended to provide that a health facility violating the section “shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation” — and the regulation adds that the cabinet imposes the fine only if the violation has not been remedied after the facility has had an opportunity to correct it through a plan of correction.97 Louisiana directs its Department of Health to verify compliance through onsite, licensing, recertification and complaint surveys.13 Washington provides that the department “shall ensure compliance with this section during any on-site inspection.”10 North Carolina allows adverse action against a hospital under G.S. 131E-78.15 Rhode Island’s ninety-day reporting duty is a different mechanism again: it produces a document at the department rather than a penalty.12 Ohio’s section authorises rulemaking by the director of health and attaches no penalty of its own.11

We found no published tally, from any state agency, of citations, fines or adverse actions issued under any surgical-smoke provision. That absence is what the “no teeth” claim is probably reaching for, and it is a claim about the enforcement record rather than about the statutes. In our assessment the practical consequence is not a fine but a survey question: in at least four of these states a surveyor already has an instrument to ask for the policy, and in Kentucky to ask whether the system is in use.

The federal hook nobody uses

The 2016 letter of interpretation names 1910.1000, air contaminants, and stops there. There is a more specific standard, and it is not mentioned on OSHA’s plume page.

(a) Scope and application. This standard applies to all occupational exposures to formaldehyde, i.e. from formaldehyde gas, its solutions, and materials that release formaldehyde.

(c)(1) TWA: The employer shall assure that no employee is exposed to an airborne concentration of formaldehyde which exceeds 0.75 parts formaldehyde per million parts of air (0.75 ppm) as an 8-hour TWA.

(c)(2) Short Term Exposure Limit (STEL): The employer shall assure that no employee is exposed to an airborne concentration of formaldehyde which exceeds two parts formaldehyde per million parts of air (2 ppm) as a 15-minute STEL.

Read the full section

The scope sentence is written by substance and by source, not by industry or by room: all occupational exposures to formaldehyde, including from materials that release it. There is no surgical, healthcare or operating-room exemption anywhere in the section. The standard also sets an action level of 0.5 ppm as an 8-hour TWA, which triggers monitoring obligations at half the permissible limit.4

Formaldehyde is one of the substances NIOSH identified in surgical smoke thirty years ago: “research studies have confirmed that this smoke plume can contain toxic gases and vapors such as benzene, hydrogen cyanide, and formaldehyde, bioaerosols, dead and live cellular material (including blood fragments), and viruses.”5 We are uncertain whether plume in any particular operating room reaches the action level; the evidence is very low certainty, because that is a monitoring question and we located no published exposure-monitoring dataset that answers it, and we do not have one. What can be said without qualification is that the standard contains no exemption that would excuse a facility from measuring, and that 1910.1048 is a written limit with a number in it, which the General Duty Clause is not.

The NIOSH document those constituents come from is Control of Smoke From Laser/Electric Surgical Procedures, DHHS (NIOSH) Publication 96-128. It is the source of nearly every specification in circulation on this subject — a capture velocity of about 100 to 150 feet per minute at the inlet nozzle, a HEPA filter or equivalent for particulates, and the instruction that “the smoke evacuator or room suction hose nozzle inlet must be kept within 2 inches of the surgical site to effectively capture airborne contaminants.”5 It is also thirty years old, published in 1996 and last reviewed by NIOSH in 2014, and it is a two-page hazard-control sheet rather than a criteria document. Anyone quoting the two-inch figure — and it is quoted constantly, usually without attribution — is quoting a publication that has not been revised since. Its last work-practice instruction is the one least often repeated and the one that connects this subject to the waste stream: at the completion of the procedure, all tubing, filters and absorbers are to be treated as infectious waste and disposed of appropriately, with new filters and tubing installed for each procedure.5 What that disposal requires is a question for the state medical-waste rule, not for NIOSH.

What would change this answer

• Your own state’s current text. Two states enacted in the four months before this page was published and neither appears on the tracker the field uses. The right unit of checking is the statute or licensing rule, not a map.
• The West Virginia legislative rule. A check of the West Virginia Secretary of State’s Code of State Rules database would move that state out of the unread column in one direction or the other, and it is the single largest gap in this article.
• Cal/OSHA’s proposed standard. If the Division submits a proposal by 1 December 2026 and the Standards Board adopts it, California moves from a rulemaking directive to a regulation with an operative command — and would then be the second jurisdiction after Kentucky whose duty runs on use rather than on paper.
• Any published exposure-monitoring data for formaldehyde in an operating room. A dataset showing plume concentrations against the 0.5 ppm action level would convert 1910.1048 from a theoretical hook into a measurable one, in whichever direction the numbers ran. We could not find one.
• An enforcement record. No state agency we looked at publishes a count of citations or fines under its surgical-smoke provision. A single published tally would settle whether these statutes are enforced or merely enacted, and would change the practical answer more than any new state would.

Where this could be wrong

The strongest objection to this page is that its central count rests on a reading. Sorting seventeen instruments into “requires a policy” and “requires use” is our classification, not a phrase any legislature used, and someone could reasonably argue that a statute commanding a policy that must itself require use of a system — Ohio, Michigan, Maryland, Washington — imposes a use duty at one remove. We think the distinction holds, because the duty-bearing verb in those statutes attaches to adopting and implementing a document and the remedy in each runs against the facility’s policy rather than against a procedure performed without evacuation; but it is an argument, and a reader taking one of these statutes to a compliance officer should read the sentence themselves rather than take our label.

The second objection is coverage. We re-retrieved eleven of the twenty-two states and read the enforcement provisions of seven of the seventeen, so “sixteen of seventeen require a policy” rests partly on our register’s retrieval log rather than on text quoted here. The third is currency: legislatures sit, and this page is a photograph taken on 6 August 2026. Register C is reviewed on 1 March and 1 September and this article annually, which means the register will be right before the article is.