Using wide-sweeping policing authority under the emergency created by the COVID-19 pandemic, Governors in three states (New Jersey, Colorado, and Minnesota) have ordered private sector companies (including construction firms) to provide them with a complete list of all PPE items they have on-hand. The orders come as concerns continue to persist (notwithstanding the herculean efforts by the Trump Administration to meet the demand) about the ability of medical personnel and facilities to have adequate PPE supplies available if peak conditions should overwhelm their capacity. [NOTE: At this time, these orders are not “confiscations orders” but, such a listing of supplies can be used later to demand or take such materials if it should come to that]. Notwithstanding, some of the businesses have raised concerns regarding if it becomes necessary to surrender the PPE supplies to the state, how will that impact them when facing an OSHA penalty for workplace safety noncompliance? [No clarification has yet been issued by OSHA].
The three states have expressed their orders in slightly different ways, but all amount to approximately the same thing – the state governments want to know what private sector firms have by way of PPE supplies. See below for example, (it’s been reported):
New Jersey (Gov. Murphy): Has ordered all businesses with personal protective equipment to submit an inventory: “Any business or non-hospital health care facility, including but not limited to dental facilities, construction facilities, research facilities, office-based healthcare or veterinary practices, and institutions of higher learning, in possession of PPE, ventilators, respirators, or anesthesia machines that are not required for the provision of critical health care services should undertake an inventory of such supplies and send that information to the State by no later than 5:00 p.m. Friday, March 27, 2020.” Murphy orders from last week also noted: “The Office of Emergency Management shall establish a process by which entities subject to this provision can submit this information.”
Colorado (Gov. Polis): Has made a similar request ordering: “any Colorado business or non-hospital health care facility, whether veterinary, dental, construction, research, institution of higher learning, or other, in possession of PPE, ventilators, respirators and anesthesia machines that are not required for the provision of critical health care services undertake an inventory of such supplies by no later than March 26th, 2020 and prepare to send it to the State of Colorado.”
Minnesota (Gov. Walz): The inventory order requires: “Any Minnesota business, nonprofit, or non-hospital health care facility, whether veterinary, dental, construction, research, institution of higher learning, or other, in possession of PPE, ventilators, respirators, or anesthesia machines (including any consumable accessories to these devices) that are not required for the provision of critical health care services or essential services and were not produced by the organization for the purpose of sale, must undertake an inventory of such supplies no later than March 25, 2020,” (Emphasis added), with the inventory listing to be submitted at: https://mn.gov/ppe. The precise definition of what is an “essential service” outside of medical health care, etc. has not been defined, but if it is mixed with non-essential then an inventory is still expected, along with STOPPING use of the PPE supplies for these non-essential activities.