concurring in the denial of rehearing en banc:
A majority of the active judges of our court declined to vote for rehearing of this case en banc. I concur in the court’s decision not to go en banc. I write to respond to the dissent from that decision.
The question is whether the San Francisco Health Care Security Ordinance (“the Ordinance”) is preempted by ERISA. We describe the Ordinance in detail in our opinion. See Golden Gate Restaurant Ass’n v. City and County of San Francisco, 546 F.3d 639, 643-47 (9th Cir.2008). In brief, the Ordinance requires San Francisco employers to pay to the City of San Francisco what amounts to a tax. The tax is either $1.17 or $1.76 per hour per employee, depending on the profit or nonprofit status of the employer and the number of employees. No employer is required by the Ordinance either to establish a new ERISA health care plan or to modify an existing ERISA health care plan. An employer may fully satisfy its obligation under the Ordinance by paying the tax to the City.
The Ordinance requires that San Francisco use the employers’ payments to help support a City-administered program that provides health care to low-and moderate-income residents of San Francisco. The program is called the Health Access Pro*1002gram (“the HAP”). The employers’ payments comprise only part of the support for the HAP. Some of those receiving health care under the HAP are employees of covered employers, but most are not. The Ordinance gives a covered employer a dollar-for-dollar credit for any amount paid by that employer for health care for its employees. That credited amount may be — but need not be — paid to an ERISA health care plan. The only requirement in order to receive the credit is that the payment be for some form of health care. The benefits obtained by an employer’s health care payments (as distinct from the amount paid for those benefits) are irrelevant to the calculation of the credit given to the employer.
The dissent makes several contentions. I disagree with all of them.
First, the dissent contends that our decision creates a circuit conflict with Retail Industry Leaders Ass’n v. Fielder, 475 F.3d 180 (4th Cir.2007). At issue in Fielder was ERISA preemption of a Maryland law that required “employers with 10,000 or more Maryland employees to spend at least 8% of their total payrolls on employees’ health insurance costs or pay the amount their spending falls short to the State of Maryland.” Id. at 183. The only employer covered by the Maryland law was Wal-Mart. The Maryland law gave nothing in return — either to the Wal-Mart or its employees — for Wal-Mart’s payment to the State.
Despite what appeared on the face of the Maryland law to be a choice between increasing ERISA health care coverage and paying money to the State, the Fourth Circuit held that the law impermissibly “related to” an ERISA plan. In the view of the court, there was no real choice. Instead, the inevitable effect of the law was to require Wal-Mart to increase its ERISA coverage of its employees. The court wrote:
This would be the decision of any reasonable employer. Healthcare benefits are a part of the total package of employee compensation an employer gives in consideration for an employee’s services. An employer would gain from increasing the compensation it offers employees through improved retention and performance of present employees and the ability to attract more and better new employees. In contrast, an employer would gain nothing in consideration of paying a greater sum of money to the State. Indeed, it might suffer from lower employee morale and increased public condemnation.
In effect, the only rational choice employers have under the [Maryland law] is to structure their ERISA healthcare benefit plans so as to meet the minimum spending threshold.
Id. at 193 (emphasis added).
The Maryland law contrasts sharply with the San Francisco Ordinance. Under the Ordinance, an employer gains an advantage from its payments to the City, because employees of covered employers are entitled to obtain health care benefits from the HAP at reduced rates. Far from imposing a de facto obligation on an employer to establish or alter an ERISA plan, the Ordinance offers an employer a meaningful choice. As of May 1, 2008, more than seven hundred San Francisco employers had elected to pay money to the City rather than to alter their other health care expenditures. Golden Gate, 546 F.3d at 660 n. 5.
The dissent nonetheless contends that our decision conflicts with Fielder. It contends, “Covered employers under San Francisco’s Ordinance must coordinate their non-ERISA payments with their ERISA plans in the very manner the Fielder court deemed impermissible.” Dissent at 1006. In support, the dissent *1003quotes the first and last sentences from a passage from Fielder but omits the intervening three sentences. The full passage is as follows:
If Wal-Mart were to attempt to utilize non-ERISA health spending options to satisfy the [Maryland law], it would need to coordinate those spending efforts with its existing ERISA plans. For example, an individual would be eligible to establish a Health Savings Account only if he is enrolled in a high deductible health plan. In order for Wal-Mart to make widespread contributions to Health Savings Accounts, it would have to alter its package of ERISA health insurance plans to encourage its employees to enroll in one of its high deductible health plans. From the employer’s perspective, the categories of ERISA and non-ERISA healthcare spending would not be isolated, unrelated costs. Decisions regarding one would affect the other and thereby violate ERISA’s preemption provision.
Fielder, 475 F.3d at 196-97 (emphasis added) (citation omitted).
The omitted sentences make clear the difference between the Maryland law and the San Francisco Ordinance. If Wal-Mart chose to use non-ERISA spending options under the Maryland law, “it would have to alter its package of ERISA health insurance plans.” Id. That is, Wal-Mart’s use of the non-ERISA spending option would necessarily produce a change in its ERISA plans. This is not true under the San Francisco Ordinance. An employer’s payment of the de facto tax to the City does not produce any change in any ERISA plan.
Second, the dissent contends that our decision conflicts with two Supreme Court decisions, Egelhoff v. Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001), and District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992).
In Egelhoff, the challenged state statute required ERISA plan administrators to follow state law in designating plan beneficiaries. The Court held the statute preempted because it “binds ERISA plan administrators to a particular choice of rules for determining beneficiary status.” Egelhoff, 532 U.S. at 147, 121 S.Ct. 1322. The Court wrote, “Plan administrators must either follow [the State’s] beneficiary designation scheme or alter the terms of their plan so as to indicate that they will not follow it.” Id. at 150, 121 S.Ct. 1322. Because the statute in Egelhoff required a change in an ERISA plan under either choice, it was preempted. By contrast, the San Francisco Ordinance does not require any change to any ERISA plan.
In Greater Washington, a Washington, D.C. ordinance required employers to provide workers’ compensation benefits to their employees. The level of required benefits was “measured by reference to the existing health insurance coverage provided by the employer.” Greater Washington, 506 U.S. at 130, 113 S.Ct. 580. The Court held that the requirement that benefits be determined by reference to benefits provided in ERISA plans was an impermissible reference to an ERISA plan. By contrast, the San Francisco Ordinance requires employers to provide money to the City (rather than benefits to the employee), and determines the level of required payment by reference to hours worked by an employee (rather than by reference to benefits provided under an ERISA plan). An employer’s required payment to the City may be reduced or eliminated if the employer makes payments to an employee’s ERISA plan or to another healthcare-providing entity; but the amount of the reduction is determined by reference to the amount of money paid.
*1004Finally, the dissent contends that ERISA responds to the “need for nationally uniform plan administration” and a “uniform regulatory system.” Dissent at 1008-09. The purpose of ERISA is not to require national uniformity in the provision of health care. Rather, its purpose is to “ensure [ ] that the administrative practices of a benefit plan will be governed by only a single set of regulations.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). Nothing in the Ordinance requires the employer to establish an ERISA plan or to alter an existing ERISA plan, and nothing in the Ordinance interferes in any way with the uniformity of ERISA regulations.