Here is a neat post about the latest skirmish over state or local attempts to mandate health benefits and whether doing so is preempted by ERISA, this time in San Francisco, where an organization representing restaurant owners is challenging a city ordinance mandating the provision of health benefits. This is echoes of the Maryland Fair Share Act and its attempt to make Wal-Mart provide health care for its employees, something I talked about here and here and here, an attempt that was deemed preempted by ERISA. I have talked in the past about how that ruling set the stage for fighting out the same battles elsewhere, as states and municipalities try to address the problem of uninsured workers in the face of ERISA preemption.

One thing that is interesting to me about these types of stories is the manner in which these attempts to mandate the provision of health care benefits run up against what has long been a central tenet and long held understanding of ERISA, which is that it was enacted by Congress not to mandate the provision of benefits but instead to encourage employers to do so, in part by creating a self-contained universe governing the issue. But it may be that we have now reached a point where the bigger societal issue and the one that many elected bodies are struggling mightily with is whether to require health care benefits, something entirely different than the issues of import when ERISA was enacted. In some ways, one can think of the preemption conflict over these types of state and local mandates as reflecting a clash of two eras, the earlier one in which ERISA, including the preemption requirement that is preventing these types of mandates, was created and the current era, in which the need to address gaps in the employer based health care system has come to the forefront as a significant issue. While there may be a lot to be said about this point, at a minimum we can safely say that the past right now is trumping (or perhaps preempting?) the present.