On April 2, New Jersey Gov. Phil Murphy issued Executive Order 113, authorizing the New Jersey State Director of Emergency Management to use the governor’s full authority under the Disaster Control Act to commandeer personal services and/or real or personal property. This includes all medical resources, such as personal protective equipment (PPE), ventilators, respirators and anesthesia machines.

This is the latest in a series of COVID-19 orders related to medical resources issued by the governor during the past 10 days. Earlier orders required businesses to submit an inventory of PPE and other medical resources by March 27 (E.O. 109) and required health care facilities to begin reporting on a daily basis their bed capacity and medical supply inventory, including PPE and ventilators (E.O. 111).

Despite efforts to procure medical resources — from the federal Strategic National Stockpile, FEMA, existing state cache of supplies, individual and corporate donations and through traditional private sector purchasing — there remains a “critical shortage” in the New Jersey, requiring a “reallocation of medical resources in the regions and health care facilities particularly affected by COVID-19.” Acting on powers created through Executive Order 103, which declared a public health emergency and state of emergency in New Jersey, Executive Order 113 states, in relevant part, as follows:

• The State Director of Emergency Management, who is the Superintendent of the State Police, has the full authority afforded to the governor under the New Jersey Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33, et seq., “to take or use personal services and/or real or personal property, including medical resources” to protect public health, safety or welfare. This authority shall be exercised in consultation with the Commissioner of the Department of Health. (E.O. 113, ¶ 1).

• “It shall be the duty of every person or entity in [New Jersey] or doing business in this state . . . to cooperate fully in all matters concerning this Executive Order, and to cooperate fully with Administrative Orders issued pursuant to this Executive Order.” (E.O. 113, ¶ 3).

• Compensation for services or property taken shall be provided following the procedures established in the Disaster Control Act. (E.O. 113, ¶ 2).

Pursuant to Executive Order 109 issued on March 23, many businesses in New Jersey were required to submit inventories to the state documenting their stock of PPE, ventilators, respirators and aesthesia machines. These businesses included, but were not limited to, dental facilities, construction facilities, research facilities, office-based health care and veterinary practices, and institutions of higher learning.

Those who deem themselves entitled to compensation for commandeered property or services may file a petition for an award with the emergency compensation board in the county in which the property was located at the time it was employed, taken or used. The board shall then grant a hearing and render a decision fixing the amount of the award. The award must be paid within one year after the decision is rendered from any funds appropriated by the state for this purpose. N.J.S.A. App. A:9-51(c).

While other state governors have issued executive orders related to procuring additional medical supplies to help combat the COVID-19 crisis, Executive Order 113 goes one step further to affirmatively authorize commandeering of property.