What better way to return from a week of vacation than with a little ERISA pre-emption jurisprudence.  To repeat my precis on the subject from just about this time last year: In a nutshell (and with apologies to ERISA lawyers), Federal ERISA law pre-empts state law that relates to insurance in the context of employee benefits.

It’s always interesting to see which health care coverage mandates founder on the rocks of ERISA pre-emption, which get a pass, and which don’t even have to be defended because nobody bothers to challenge them.  As usual, the bottom line is more about realpolitik than The True Meaning of ERISA (or whatever other law may be at issue); folks whose noses aren’t out of joint don’t sue — the lesson being: do your homework. 

For better or worse, witness the Massachusetts experience (no ERISA pre-emption challenge due in large part to the fact that employers and the SEIU were brought into the big tent early on) vs. Maryland and — this week’s poster child — San Francisco (both challenged and held pre-empted). 

For further reading on the recent San Fran ordinance being struck down, see the WSJ Health Blog and Stephen Rosenberg’s Boston ERISA and Insurance Litigation Blog.  (Rosenberg bemoans the choice of Maryland as test case; again, it seems to me that such challenges are brought only if the plaintiffs aren’t seated at the table.)  See my earlier post on the Maryland Wal-Mart ERISA decision here.

Update 1/10/08:  The federal appeals court ruled the San Francisco pay or play plan may be implemented pending appeal.  Score one for the city.  Employers are less than thrilled.

David Harlow