Friday, December 1, 2006
Steven Sholk, an attorney at Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. in Newark, New Jersey, writes to tell us that his new article, ERISA Pre-emption to the Rescue, has been published in the November 20, 2006 issue of the New Jersey Law Journal and in the Employment Law Practice Center of law.com.
The article discusses Wal-Mart's challenge to the Maryland pay or play healthcare statute. I agree with Steve's conclusion that Fourth Circuit's decision on Maryland's Wal-Mart law will probably come down to which:
public policy the Fourth Circuit more strongly wishes to promote. If the Fourth Circuit wishes to promote the policy of national uniformity in ERISA plans, it will find preemption. If the court wishes to promote the policy of encouraging states to seek solutions to the problem of the large number of uninsureds, it will not find pre-emption.
I have little doubt that the Fourth Circuit will follow recent United States Supreme Court preemption cases in this area, including Egelhoff v. Egelhoff, 532 U.S. 141 (2001), and find that national uniformity in the area of employee benefit plans is of paramount importance and find against the Maryland law.
Personally, however, I think the preemption language of Section 514(a) should be legislatively modified to allow for such state experimentation in the area of health care reform.