In November of 2006, the Golden Gate Restaurant Association (“GGRA”) filed a lawsuit challenging the Employer Spending Requirement (“ESR”) of San Francisco’s Health Care Security Ordinance (“HCSO”). On September 30, 2008, the Ninth Circuit Court of Appeals upheld the ESR, which was effective on January 9, 2008, for employers with 50 or more employees, and April 1, 2008, for for-profit employers with 20-49 employees.
GGRA’s challenge to the HCSO is not yet over. On October 21, 2008, GGRA filed a petition asking the Ninth Circuit to grant a discretionary en banc (11 judge) review of the three-judge panel’s decision. The City and County of San Francisco’s response is due on December 3, 2008. Failing such relief, eventual Supreme Court review is likely given the high degree of public interest in health care, and at least the appearance of a split in the circuits. In the mean time, the employer spending requirement remains in effect, with increases in the spending requirement and a decrease in the minimum hours per week covered employees must work in San Francisco (from 10 to 8), effective January 1, 2009.