Well, the world of ERISA preemption, without Maryland’s Wal-Mart law to focus on anymore, turns its lonely eyes to Massachusetts’ universal health insurance statute, with the Boston Business Journal posting a front page article this week that says, in essence, it might be preempted but then again, maybe not.

Whether or not this statute is actually preempted is one of those questions on which I could credibly argue either way, so there is some room for debate here. However, Ed Zelinsky of Cardozo School of Law, who generally knows what he is talking about with regard to preemption, has concluded in one of the first, if not the first, detailed academic analysis of the question that the Massachusetts statute is in fact preempted. Zelinsky’s paper finds that:  

Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care.

This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law’s mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make “fair and reasonable” contributions to such plans. ERISA also preempts the new law’s requirement that Massachusetts residents maintain “minimum creditable coverage” for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees…

As is often the case when law review papers cross my desk, credit is due the Workplace Prof blog for bringing Professor Zelinsky’s law review article to my attention.