Full opinion text
MEMORANDUM OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW JAMES L. GRAHAM, District Judge. I. History of the Case This is an action for declaratory and injunctive relief brought pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201. The plaintiffs are Nationwide Mutual Insurance Company (“Nationwide”), the Benefits Administrative Committee (“the Committee”), and Joan Sherfel, a member of the Committee. Nationwide is a mutual corporation incorporated in the State of Ohio, with its principal place of business in Columbus, Ohio. Doc. 74, ¶ 4. Nationwide is the plan sponsor of the Nationwide Insurance Companies and Affiliates Plan for Your Time and Disability Income Benefits (“the Plan”). Doc. 74, ¶ 1. The Committee is the Plan Administrator of the Plan, and the Committee members reside and administer the Plan in the Southern District of Ohio. Doc. 74, ¶ 3. The defendants are Roberta Gassman, Secretary of the State of Wisconsin Department of Workforce Development (“DWD”); LeAnna Ware, Administrator of the Equal Rights Division (“ERD”) of the DWD; and John Byron Van Hollen, Attorney General of the State of Wisconsin. The DWD is charged with receiving and investigating complaints under the Wisconsin Family and Medical Leave Act (“WFMLA”), Wis. Stat. § 103.10, holding hearings on those complaints, rendering a decision on the complaint, and ordering remedies for violations, including providing requested family or medical leave, reinstating an employee, providing back pay and paying reasonable attorney fees to the complainant. Wis. Stat. § 103.10(12). The DWD is also authorized to bring a civil action in a Wisconsin circuit court against an employer to recover damages caused by an employer’s violation of Wis. Stat. § 103.10(11), which prohibits interference with an employee’s exercise of his or her rights under the WFMLA or retaliation for exercising those rights. See Har vot v. Solo Cup Co., 320 Wis.2d 1, 15-16, 768 N.W.2d 176 (2009). The ERD is the division of the DWD which administers the WFMLA and investigates complaints of violations of the WFMLA. When probable cause for a violation is found, the ERD investigator refers the complaint to an Administrative Law Judge (“ALJ”). The ALJ conducts hearings and issues final and enforceable orders against employers who are found to be in violation of the WFMLA. Leave under the WFMLA is generally unpaid leave. Wis. Stat. § 103.10(5)(a) (“This section does not entitle an employee to receive wages or salary while taking family leave or medical leave.”). However, in the subsection commonly referred to as the “substitution provision,” the WFMLA provides that “[a]n employee may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer.” Wis. Stat. § 103.10(5)(b). Defendant Van Hollen is the head of the Wisconsin Department of Justice is authorized by statute to appear for and represent the state or any state agency, or to prosecute or defend any agency or official in any matter, civil or criminal, in any court. Wis. Stat. § 165.25(l)(m). In their first amended complaint filed on February 1, 2010, plaintiffs allege that Katharina Gerum, a Nationwide associate employed in Wisconsin, filed a complaint with the ERD against Nationwide on April 18, 2007, claiming that Nationwide violated the substitution provision of the WFMLA by denying her request to receive benefits under the Plan’s Short-Term Disability Income Benefit Program (“STD Program”) during intermittent time off from work to bond with her newborn child on the ground that she was not “disabled” within the meaning of the Plan. The ALJ assigned to the complaint ruled in favor of Gerum, and ordered Nationwide to pay Gerum benefits “under its STD Program,” or, if that was not possible, from Nationwide’s general assets. See Plaintiffs’ Ex. 14. In their amended complaint, plaintiffs allege that the Plan qualifies as an ERISA plan, and that the WFMLA substitution provision is pre-empted by ERISA insofar as an associate seeks under the WFMLA to substitute benefits provided under the Plan. Plaintiffs rely on the Supremacy Clause of the United States Constitution and ERISA’s pre-emption provision, 29 U.S.C. § 1144(a), which states that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). Plaintiffs allege that the WFMLA substitution provision conflicts with and is pre-empted by ERISA because, as interpreted, it requires payment of STD income benefits to associates who are not disabled rather than deferring to Plan documents, interferes with the exclusive claims administration procedure established under ERISA, and prevents the Committee from determining eligibility for benefits pursuant to ERISA and the terms of the Plan. In Count I of the first amended complaint, plaintiffs assert a claim for injunctive relief, alleging that the State of Wisconsin’s application of the WFMLA substitution provision to the Plan has caused and will cause irreparable harm to plaintiffs by putting plaintiffs in the position of choosing between violating Wisconsin law and violating ERISA and the terms of the Plan by paying short-term disability (“STD”) benefits to plan participants who do not qualify for those benefits. Plaintiffs request an order prohibiting defendants from processing, investigating and adjudicating claims for benefits that are governed exclusively by ERISA, and from initiating or participating in a state court action that attempts to apply or enforce the WFMLA substitution provision against plaintiffs with regard to STD benefits. In Count II of the first amended complaint, plaintiffs seek a declaratory judgment that the Plan is an ERISA plan, that the substitution provision of the WFMLA is pre-empted to the extent that it is interpreted and applied to require the payment of disability income benefits to associates who are not entitled to benefits under the terms of the Plan and/or ERISA, that the Committee is not required to grant substitution requests for STD income benefits to associates who are not disabled, and that Nationwide is not required to pay substitution requests for STD income benefits made by non-disabled associates out of general assets. In Count III of the first amended complaint, the Committee, as Plan Administrator and a fiduciary under ERISA, requests instructions from the court as to whether it may continue to administer the Plan in accordance with Plan documents and ERISA without regard to the WFMLA. By order dated September 27, 2010, 748 F.Supp.2d 776 (S.D.Ohio 2010) this court denied defendants’ motion to dismiss under Fed.R.Civ.P. 12(b)(6). At a telephone conference held on October 1, 2010, the court discussed consolidating the hearing on plaintiffs’ motion for a preliminary injunction with the hearing on the merits of the case pursuant to Fed.R.Civ.P. 65(a)(2). The parties agreed to this procedure, and a final hearing on the merits was held on October 20, 2010. The parties have submitted post-trial briefs, and this matter is now before the court for a final decision on the merits. II. Findings of Fact The material facts underlying the instant case are not in dispute. On October 18, 2010, the parties filed a stipulation of facts. See Doc. 74. Evidence was also offered at the hearing on October 20, 2010, including documentary evidence and the testimony of Joanna McGoldrick, Nationwide Vice President of Benefits Planning; Joan Sherfel, Nationwide Associate Vice President of Human Resources; LeAnna Ware, Administrator of the State of Wisconsin Department of Work Force Development, Equal Rights Division; and Larry Jakubowski, Administrative Law Judge for the Equal Rights Division. A. The Nationwide Plan Nationwide conducts business in forty-nine states and has over thirty-two thousand employees. Hearing Tr., p. 15. Approximately two hundred of those employees reside in Wisconsin. Hearing Tr., p. 16. Through the Plan, Nationwide provides a standard set of benefits to all associates. Maintaining the same level of benefits aids in the administration of benefits and assists Nationwide in estimating funding needs. Hearing Tr., p. 17. As the sponsor of the Plan, Nationwide has filed tax and reporting documents with the federal government. Doc. 74, ¶ 11. The record includes a Form 5500 Annual Return/Report of Employee Benefit Plan for the year 2009 which Nationwide filed on behalf of the Plan. See Plaintiffs’ Ex. 7. The features of the Plan are outlined in the Plan documents contained in Plaintiffs’ Ex. 1, as well as summary plan documents. Hearing Tr., p. 72. The Nationwide Plan includes three benefits programs: 1) the Your Time Program; 2) the Short-Term Disability Income Benefit Program (“STD Program”); and 3) the Long-Term Disability Income Benefit Program (“LTD Program”). See Plaintiffs’ Ex. 1; Doc. 74, ¶ 6. The Summary Plan Description for the STD Program is included in the record as Plaintiffs’ Ex. 2. The Plan is a funded plan. Under § 12.03 of the Plan, Nationwide and its affiliates must make contributions to the Plan on behalf of active associates sufficient to cover all costs of the Plan in excess of the contributions made by associates. Nationwide has funded the Plan through the establishment of the Nationwide Mutual Health Care Trust (“the Trust”). See Trust Agreement, Plaintiffs’ Ex. 4; Doc. 74, ¶ 9. The Trust Agreement states that the plan sponsor “hereby represents and warrants that the Plan is an employee welfare benefit plan, as that term is defined in Section 3(a) of ERISA.” Ex. 4, p. 3. On behalf of the Trust, Nationwide filed a Form 990 Return of Organization Exempt from Income Tax for the year 2009. See Plaintiffs’ Ex. 8. Nationwide, its affiliates, and the associates of Nationwide and its affiliates make contributions to the Trust for the payment of Plan benefits. Doc. 74, ¶ 9. The Trust Agreement also states, This Trust shall constitute the sole source of funds which may be used to pay benefits under the Plan, and the Participating Employers shall not be liable in any way or in any manner for any such benefits beyond those monies which have been contributed to this Trust. Ex. 4, § 9.15. The sole purpose of the Trust is to hold the assets used to pay Plan benefits. Doc. 74, ¶ 9. The Committee’s role is outlined in the Benefits Administrative Committee Charter. See Plaintiffs’ Ex. 5. The Committee is the named Plan Administrator and fiduciary of the Plan. Plaintiffs’ Ex. 1, § 9.01. The Committee has the legal right and obligation to direct the payment of benefits to associates from the Trust as dictated by the written terms of the Plan documents and ERISA’s fiduciary standards. Only the Committee or a person with authority delegated from the Committee is authorized to direct payments out of Trust assets for STD, Your Time, and other funded benefits. Doc. 74, ¶ 10. Specifically, the Committee has the power to exercise discretion and to construe and interpret provisions of the Plan, determine the eligibility of associates to participate in the Plan, to decide all questions arising under the Plan, including the rights of participants under the Plan, and to determine the amount, manner, and time of the payment of benefits. Plaintiffs’ Ex. 1, § 9.04. The Your Time Program provides accrued leave based on the number of hours worked by the associate in a pay period, the associate’s length of service, and the associate’s pay band. Plaintiffs’ Ex. 1, § 2.02.02. Leave accrued under the Your Time Program may be used for vacation, sick days, and personal days. The use of Your Time leave is subject to approval by the associate’s supervisor, and associates do not have to contribute to this feature of the Plan. The STD Program provides disability income benefits to participants who become “disabled” as that term is defined in the Plan, and who are unable to work. The record includes a Summary Plan Description for the STD Program. See Plaintiffs’ Ex. 2. “STD Disabled” means “a disability or disablement that results from a substantial change in medical or physical condition due a specific Illness that prevents an Eligible Associate from working their current position.” Plaintiffs’ Ex. 1, § 1.57. “Pregnancy and complications of Pregnancy are covered for the Active Associate on the same basis as any other sickness.” Plaintiffs’ Ex. 1, § 1.55. The STD Program is an income replacement or salary continuation benefit that is paid from the Trust, as opposed to associates’ regular salaries, which are paid from Nationwide’s general assets. The Plan language establishing the STD Program does not describe it as a leave program. See Plaintiffs’ Ex. 1, § 3.03.02 (“Short-Term Disability Income Benefits are not available for an Active Associate while on an approved Leave of Absence.”); Hearing Tr. (McGoldrick testimony), p. 37 (Nationwide makes a distinction between leave of absence and income replacement benefits). Rather, the program is designed to ensure that Nationwide associates have some income replacement if they meet the requirements for being STD Disabled, and the Committee is not authorized to approve payment of STD benefits to someone who is not “STD Disabled.” Hearing Tr., p. 28. Associates can learn about the benefits provided by the STD Program by looking at the Plan documents and the Summary Plan Description (Plaintiffs’ Ex. 2), and by consulting the Plan’s website and call center. Hearing Tr., p. 26. The Summary Plan Description provides information regarding benefits, eligibility, contributions, funding, applying for benefits, appeals, and ERISA rights. Hearing Tr., p. 27; Plaintiffs’ Ex. 2. Associates are eligible to receive basic STD income benefit coverage at no charge. Associates with up to fifty-nine months of service receive short-term disability (“STD”) income benefit coverage of sixty percent of base salary, and associates with over sixty months of service receive coverage of eighty percent of base salary. See Plaintiffs’ Ex. 2, § 14.6.1. Associates may elect to pay a premium which makes the associate eligible to receive an additional twenty percent of base salary. Plaintiffs’ Ex. 2, § 14.6.2. Employees may also use Your Time hours to increase the benefit amount to one hundred percent of base salary. Plaintiffs’ Ex. 2, § 14.6.3. The waiting period for receipt of STD benefits is five consecutive normally scheduled work days for which the associate is absent. Plaintiffs’ Ex. 2, § 14.5. An eligible associate may then receive STD benefits for between six and seven months. Plaintiffs’ Ex. 2, § 14.9. A claim for STD benefits is filed through the Disability Assessment Committee, which was established by charter. See Plaintiffs’ Ex. 6. If a claim for benefits is denied, the associate can appeal that decision to the Committee. Hearing Tr., p. 28. The STD Program provisions do not'address when or whether an associate may take a leave of absence from work due to disability. Doc. 74, ¶ 8. The LTD Program provides long-term disability (“LTD”) benefits to an eligible employee who is “LTD Disabled,” meaning that the associate has “a disability or disablement that results from a substantial change in medical or physical condition as a result of Injury or Sickness and that prevents an Active Associate from engaging in Substantial Gainful Employment for which [the associate] is, or may become, qualified.” Plaintiffs’ Ex. 1, § 1.34. LTD benefits commence on the date benefits under the STD Program are exhausted. Plaintiffs’ Ex. 1, § 4.03.02.01. Associates who wish to be eligible for LTD benefits must enroll in the LTD Program and pay a part of the premium. The various options for maternity leave are described in the Nationwide guidebook for expectant parents. See Plaintiffs’ Ex. 3. Maternity leave may begin up to two weeks prior to delivery. Up to six weeks of leave are available for a normal delivery, and up to eight weeks are provided for a cesarean section. Plaintiffs’ Ex. 3, p. 7. The first five days of leave are unpaid, unless the associate elects to use her available accrued Your Time benefits. After the first seven calendar days of absence, the associate can receive up to six weeks of STD benefits for a normal delivery, and up to eight weeks of STD benefits following a cesarean section. Plaintiffs’ Ex. 3, p. 7. Any additional leave requires the approval of the associate’s manager. During this period, the associate can use available Your Time benefits to take additional paid leave. With a manager’s approval, the associate can also take up to ten days of unpaid leave, or an unpaid leave of absence of eleven days to five months. Plaintiffs’ Ex. 3, p. 9. If the associate is STD Disabled, continued STD benefits may be available. Plaintiffs’ Ex. 3, p. 7. The guidebook further notes that although leave of up to twelve weeks may be available under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., any additional time off to comply with the FMLA would not be paid time off unless covered by Your Time, the STD Program, or the LTD Program. Plaintiffs’ Ex. 3, p. 11. B. The Gerum Claim On March 21, 2007, the Committee decided an appeal regarding a claim for STD benefits made by Katharina Gerum, a Nationwide associate residing in Wisconsin. Gerum asserted a claim for STD benefits to be paid while she took additional time off (beyond the six weeks typically allowed) to bond with her baby, claiming that the payment of such benefits was required under the WFMLA’s substitution provision. The Committee denied the appeal. The Committee concluded that the STD Program was not “accrued paid leave” within the meaning of the substitution provision, but rather was a partial income replacement provided to a disabled person who is not receiving paid leave. Because Gerum was not STD Disabled, that is, unable due to illness to work her current position, her claim for STD benefits was denied. See Plaintiffs’ Ex. 11. On April 18, 2007, Gerum filed a complaint against Nationwide with the ERD, alleging that Nationwide had violated the WFMLA. Doc. 74, ¶ 12; see also Defendants’ Ex. S (ERD Administrative Record of the Ge-rum Proceedings). The Committee was not a party to this proceeding. Doc. 74, ¶ 18. The Wisconsin DWD administers the ERD, which is responsible for enforcing the WFMLA. Hearing Tr., p. 111. After a complaint is filed, an ERD officer is assigned to investigate the claim to determine if there is probable cause to believe that a violation of the WFMLA has occurred. Hearing Tr., pp. 112-115. If the investigator determines that probable cause exists, then the case is referred to an ALJ to conduct a hearing. Hearing Tr., p. 120. Because the investigators do not resolve legal issues, a case presenting unsettled legal questions is likely to be referred to an ALJ. Hearing Tr., p. 126. At the time of the hearing before this court, there were nine ALJs in the ERD. Hearing Tr., p. 173. After a case is referred for a hearing, the assigned ALJ reviews the file and the briefs, holds hearings, gathers evidence, and drafts decisions. Hearing Tr., p. 172. The parties may conduct discovery and present witnesses at the hearing. Hearing Tr., pp. 176, 193. The substantive decisions of the ALJs are made independently and free of supervisory or political involvement. Hearing Tr., pp. 145, 187. The decisions of the ALJs are not precedential. Hearing Tr., pp. 151, 201, 204. In contrast, the decisions of the Wisconsin courts of appeals and the Wisconsin Supreme Court are considered to be binding precedent unless they can be distinguished. Hearing Tr., pp. 168, 208-210. If a claim against Nationwide is filed in the future, administrative law judges with the ERD would look to the decision of the Wisconsin Supreme Court in Aurora Medical Group v. Department of Workforce Development, Equal Rights Div., 236 Wis.2d 1, 612 N.W.2d 646 (Wis.2000) (holding that the WFMLA substitution provision was not preempted by ERISA and that benefits from the employer’s ERISA sick time plan could be substituted), to determine whether that decision was distinguishable on its facts. Hearing Tr., pp. 205-210. On May 10, 2007, Mark Robarge, the ERD officer assigned to investigate Ge-rum’s complaint, sent an e-mail to Jim Chiolino, then Chief of the Civil Rights Bureau of the ERD, requesting advice as to whether Gerum’s claim fell within the substitution provision of the WFMLA. Doc. 74, ¶ 13; Plaintiffs’ Ex. 12. Chiolino responded on May 11, 2007, and noted that in the case of Northwestern Mutual Life Ins. Co. v. Dept. of Industry, Labor and Human Relations, Equal Rights Div., No. 94-CV-001022 (Wis.Cir.Ct., Jan. 16, 1995), a Wisconsin circuit court had held that disability plan benefits are to be substituted. Doc. 74, ¶ 14; Plaintiffs’ Ex. 12. On May 21, 2007, Robarge determined that there was probable cause to believe that Nationwide had violated the WFMLA. Robarge noted Nationwide’s arguments that Gerum’s claim was pre-empted by ERISA and that the leave sought by Ge-rum was not available for substitution under the WFMLA, but concluded that these arguments presented issues of law best addressed during the hearing process by an ALJ. Doc. 74, ¶ 15; Plaintiffs’ Ex. 13. On June 20, 2007, Nationwide filed a notice of removal in the United States District court for the Western District of Wisconsin, attempting to secure the removal of Gerum’s claim to that court based on ERISA pre-emption. See Defendants’ Ex. K. The district court granted Gerum’s motion to remand, concluding that the issue of whether Nationwide’s STD benefits constituted “accrued leave” subject to substitution under the WFMLA was a question of state law, and that Nationwide’s assertion of ERISA pre-emption as a defense did not provide a basis for removal of the administrative proceedings to federal court. See Defendants’ Ex. O, Gerum v. Nationwide Mutual Ins. Co., Case No. 07-C-340-S, 2007 WL 2309954 (W.D.Wis. Aug. 13, 2007). On August 14, 2008, ALJ Gary L. Olstad issued a decision in the Gerum matter, styled as Katharina A. Gerum v. Nationwide Insurance, ERD # CR200701451. See Plaintiffs’ Ex. 14. ALJ Olstad concluded that “Nationwide, through its STD plan administrators,” violated the WFMLA when it denied Gerum’s request to substitute paid STD leave for leave under the WFMLA. Plaintiffs’ Ex. 14, p. 2. The ALJ ordered Nationwide to allow Gerum “to substitute paid leave under its STD plan” for leave under the WFMLA by compensating her in the amount she would have been compensated had the substitution been approved when requested. Plaintiffs’ Ex. 14, p. 2. The ALJ further ordered Nationwide to “restore to Gerum’s Your Time benefits account the eight days she used to cover the denial of her substitution request.” Plaintiffs’ Ex. 14, p. 2. The ALJ rejected Nationwide’s argument regarding ERISA pre-emption, noting that Gerum never requested STD benefits because she thought she was entitled to them, but because the WFMLA said she could do so. Plaintiffs’ Ex. 14, p. 3. The ALJ concluded that Nationwide’s STD benefit plan “is a type of leave offered to its employees” and therefore subject to substitution. Plaintiffs’ Ex. 14, p. 3. The ALJ also rejected Nationwide’s argument that it had no control over the payment of STD benefits, noting, It may be true that Nationwide itself has no input in the approval or denial of benefits in any given case; to argue it has no control is ludicrous. Nationwide could, at any time, discontinue offering employee benefits such as its STD plan. More control does not exist. Plaintiffs’ Ex. 14, p. 3. The ALJ further noted that Nationwide’s argument that it lacked authority to order payment of STD benefits also failed because Nationwide was required to permit the substitution of STD leave for leave under the WFMLA, and that “[i]f there is no provision in the plan to make payments required by law, Nationwide must pay. Which pocket the money comes from is of no moment.” Plaintiffs’ Ex. 14, p. 4. Prior to the Gerum decision, ALJ Olstad had issued another order in Richtig v. Florence Villa Nursing & Rehab, ERD Case No. CR200101393 (Jan. 30, 2002). The Florence Villa employee filed a complaint contending that she was entitled to STD benefits while on four weeks of WFMLA leave due to foot surgery. ALJ Olstad concluded that the employer violated the WFMLA by refusing to permit the complainant to collect STD benefits under the employer’s STD plan. See Plaintiffs’ Ex. 16, p. 2. The ALJ’s order was presented to the Committee. However, the Committee rejected the request for payment because the request for benefits was not within the terms of the Plan. The order created a conflict for the Committee as to whether to follow Wisconsin law or federal law. To resolve the issue, Nationwide settled with Gerum. Hearing Tr. p. 81. If STD benefits are available for substitution in Wisconsin, Nationwide might have to charge Wisconsin employees more for the coverage and Wisconsin employees would receive a benefit which Nationwide employees in other states are not entitled to, both which would go against Nationwide’s equity philosophy of providing a standard set of benefits. Hearing Tr., pp. 63-64. Following the Gerum matter, an e-mail inquiry was received by the Nationwide Associate Service Center on November 2, 2009, from an associate in Wisconsin requesting to substitute STD benefits for six additional weeks to bond with her baby. The associate was informed that current Nationwide policy did not permit substitution of STD benefits for baby bonding time. Plaintiffs’ Ex. 15; Hearing Tr., p. 41. If a Nationwide associate filed a claim with the ERD in the future, alleging a denial of the opportunity to substitute short-term or long-term disability benefits or disability retirement benefits, the ERD would exercise jurisdiction over the claim. Hearing Tr., p. 94. III. Conclusions of Law A. Existence of an ERISA Plan The threshold issue to be determined is whether the Nationwide Plan qualifies as an ERISA plan. See Daft v. Advest, Inc., 658 F.3d 583, 590-591 (6th Cir.2011) (the existence of an ERISA plan is an element of the plaintiffs claim). “Determining the existence of an ERISA plan is a question of fact to be answered in light of all the surrounding circumstances and facts from the point of view of a reasonable person[.]” Kolkowski v. Goodrich Corp., 448 F.3d 843, 847 (6th Cir. 2006). The mere labeling of a particular benefit as an ERISA plan is not determinative. Langley v. DaimlerChrysler Corp., 502 F.3d 475, 481 (6th Cir.2007). In determining whether ERISA covers a particular plan, courts consider the following factors: (1) does a “safe harbor” exception apply; (2) if not, do the surrounding circumstances suggest that a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and the procedures for receiving benefits; and (3) has the employer established or maintained the plan with the intent of providing benefits to its employees. Id. at 479. The terms “employee welfare benefit plan” and “welfare plan” are defined as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions. 29 U.S.C. § 1002(1). The benefits described in “section 186(c) of this title” include “pooled vacation, holiday, severance or similar benefits.” 29 U.S.C. § 186(c)(6). The Plan provides vacation benefits and benefits in the event of sickness and disability, those being the types of benefits which fall within the definition of “employee welfare benefit plan.” No “safe harbor” has been identified in this case. The Plan is funded through the Trust, which was specially created to fund the Plan, not Nationwide’s general assets. The creation of a separate fund to pay employee benefits subjects an employer to the regulatory provisions of ERISA. Massachusetts v. Morash, 490 U.S. 107, 114, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989). The Plan does not provide “normal compensation” as a result of disability from “the employer’s general assets,” and therefore is not a mere “payroll practice” under 29 C.F.R. § 2510.3-1(b)(2) which would not be regulated by ERISA. See Abella v. W.A. Foote Mem’l Hosp., 740 F.2d 4, 5 (6th Cir.1984). A reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and the procedures for receiving benefits by examining the Plan documents, the Summary Plan Description, and the Trust documents. The evidence, including the Plan documents and the hearing testimony, also establishes that Nationwide has established and maintained the Plan with the intent of providing benefits to its employees. Such a purpose is also corroborated by the filing with the Internal Revenue Service of the annual returns/reports which are required of employee benefit plans. The Plan has been held to qualify as an ERISA plan in other cases. See Plaintiffs’ Ex. 9 (Order in McGoldrick v. Bradstreet, Case No. 2:08-cv-01 (S.D.Ohio Sept. 26, 2008) approving consent decree which specified that the Nationwide Plan is an ERISA plan); Plaintiffs’ Ex. 10 (Order Adopting Report and Recommendation in Nationwide Mut. Ins. Co. v. Copadis, No. 07-cv-241-PB (D.N.H. September 12, 2007) finding that the Nationwide Plan is an ERISA plan). The court finds and concludes that the Plan qualifies as an “employee welfare benefit plan” governed by ERISA. B. Eleventh Amendment Defense Defendants argue that the instant action must be dismissed on the ground of Eleventh Amendment immunity. This argument was previously raised by defendants in their motion to dismiss, and was rejected in this court’s order of September 27, 2010, Doc. 60, 748 F.Supp.2d at 787-89. For the reasons stated in that order, this court remains convinced that the Eleventh Amendment does not pose a bar to plaintiffs’ claims. Under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a suit that claims that a state official’s actions violate federal law is not deemed a suit against the state barred under the Eleventh Amendment so long as the state official is the named defendant and the relief sought is only equitable and prospective. Westside Mothers v. Haveman, 289 F.3d 852, 860 (6th Cir.2002); see also Carten v. Kent State University, 282 F.3d 391, 395 (6th Cir.2002) (action seeking prospective relief to end a continuing violation of federal law falls within the Ex parte Young exception to the Eleventh Amendment bar). In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), plaintiffs sought declaratory relief holding that certain New York laws were pre-empted by ERISA. The Supreme Court, citing Ex parte Young, 209 U.S. at 160-162, 28 S.Ct. 441, stated, “It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.” Id. at 96 n. 14, 103 S.Ct. 2890. As noted in this court’s order of September 27, 2010, Doc. 60, plaintiffs adequately pleaded a threatened, ongoing violation of ERISA pre-emption law in their first amended complaint. See also Doc. 60, 748 F.Supp.2d at 781-87 (discussing the sufficiency of plaintiffs’ allegations to establish standing, and concluding that plaintiffs had alleged an “injury in fact” that was concrete and particularized, actual or imminent, fairly traceable to the challenged action of the defendants, and likely to be redressed by a favorable decision). Defendants’ argument that plaintiffs have failed to prove their allegations of threatened, ongoing harm goes to the merits of plaintiffs’ claims. However, the focus of the Eleventh Amendment inquiry under Ex parte Young “remains on the allegations only; it ‘does not include an analysis of the merits of the claim.’ ” League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 474 (6th Cir.2008) (quoting Verizon Maryland, Inc. v. Public Service Com’n of Maryland, 535 U.S. 635, 646, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002)). The Sixth Circuit in Brunner noted that defendants’ reliance on excerpts from deposition testimony to attempt to show that none of the plaintiffs had a reasonable basis to believe the violations would occur in the future was “contrary to Verizon, which limits the inquiry to the complaint.” Id. at 475; see also Dubuc v. Michigan Board of Law Examiners, 342 F.3d 610, 616 (6th Cir.2003). The instant case is not a mere appeal of the Gerum matter, which has been settled. Rather, this is an action brought by Plan fiduciaries pursuant to the enforcement provisions of ERISA: (a) A civil action may be brought — ... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan[.] 29 U.S.C. § 1132(a)(3). Section 1132(a)(3) grants to ERISA fiduciaries a cause of action for injunctive and declaratory relief to enjoin an act or practice which violates ERISA pre-emption principles. Thiokol Corp. v. Department of Treasury, State of Michigan, Revenue Div., 987 F.2d 376, 380 (6th Cir.1993); see also Denny’s, Inc. v. Cake, 364 F.3d 521, 524-528 (4th Cir.2004) (ERISA fiduciary may bring an action for declaratory and injunctive relief under § 1132(a)(3) to enforce 29 U.S.C. § 1144, ERISA’s pre-emption provision). Plaintiffs’ claims for declaratory and injunctive relief under § 1132(a)(3), alleging that the continued threat of enforcement of the WFMLA substitution provision against the Plan violates the Supremacy Clause and the federal law of ERISA preemption, are not barred by the Eleventh Amendment. See Thiokol, 987 F.2d at 382 (claims based on ERISA pre-emption asserted against state officials in their official capacities for prospective declaratory and injunctive relief are not barred by the Eleventh Amendment); see also Commonwealth Edison Co. v. Vega, 174 F.3d 870, 871-72 (7th Cir.1999) (action against Illinois official in her official capacity seeking injunctive and declaratory relief on the basis that Illinois statute was pre-empted by ERISA and was therefore unenforceable under the Supremacy Clause of the Constitution was not barred by the Eleventh Amendment); CIGNA Healthplan of Louisiana, Inc. v. State of Louisiana ex rel. Ieyoub, 82 F.3d 642, 644 n. 1 (5th Cir.1996) (action against state official seeking injunctive relief and declaratory judgment that state law was preempted by ERISA was not barred by the Eleventh Amendment). C. ERISA Pre-emption 1. Plaintiffs’ Claims Plaintiffs claim that the substitution provision of the WFMLA is pre-empted by ERISA insofar as that provision is applied to permit associates to substitute STD benefits offered by the Plan for unpaid WFMLA leave. They seek injunctive relief prohibiting the application of the substitution provision against the Plan, as well as declaratory relief that the substitution provision is preempted by ERISA. “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.” Shaw, 463 U.S. at 96 n. 14, 103 S.Ct. 2890; see also Associated Builders and Contractors, Saginaw Valley Area Chapter v. Perry, 115 F.3d 386, 389 (6th Cir.1997) (holding in a ease involving an ERISA preemption issue that the court had “jurisdiction over suits to enjoin state officials from interfering with federal rights”). An action such as this one seeking declaratory and injunctive relief on the grounds of ERISA pre-emption may be brought by Plan fiduciaries pursuant to 29 U.S.C. § 1132(a)(3). See Denny’s, 364 F.3d at 525-28 (§ 1132(a)(3)(B) permits an ERISA fiduciary to bring an action seeking injunctive and declaratory relief to enforce § 1144, ERISA’s pre-emption provision); Thiokol, 987 F.2d at 379-80 (fiduciary may bring claims for declaratory and injunctive relief pursuant to § 1132(a)(3) arguing ERISA pre-emption). The Committee also seeks instructions on whether it must comply with the WFMLA or with the terms of the Plan. A fiduciary of a plan covered by ERISA may bring a declaratory judgment action in federal court to determine whether the plan’s trustees may comply with state law. Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 26, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (“A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court.”). 2. Purpose of ERISA Pre-emption “The purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). ERISA represents a balance between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans. Id. at 215, 124 S.Ct. 2488. In enacting ERISA, Congress sought to offer employees enhanced protection for their benefits, while avoiding the creation of a system that is so complex that administrative costs or litigation expenses would unduly discourage employers from offering welfare benefit plans in the first place. Varity Corp. v. Howe, 516 U.S. 489, 497, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Thus, ERISA “induc[es] employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial orders and awards when a violation has occurred.” Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002); see also Conkright v. Frommert, 559 U.S. 506, 130 S.Ct. 1640, 1649, 176 L.Ed.2d 469 (2010). The purpose of ERISA pre-emption is to avoid conflicting federal and state regulation to create a nationally uniform administration of employee benefit plans. Helfinan v. GE Group Life Assurance Co., 573 F.3d 383, 390 (6th Cir.2009) (noting that state regulation of plans creates the potential for fifty or more conflicting governance structures, while uniform governance under federal law avoids these conflicts). One of the principal goals of ERISA is to enable employers “to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.” [Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) ] Uniformity is impossible, however, if plans are subject to different legal obligations in different States.... Plan administrators cannot make payments simply by identifying the beneficiary specified by the plan documents. Instead they must familiarize themselves with state statutes so that they can determine whether the named beneficiary’s status has been “revoked” by operation of law. And in this context the burden is exacerbated by the choice-of-law problems that may confront an administrator when the employer is located in one State, the plan participant lives in another, and the participant’s former spouse lives in a third. In such a situation, administrators might find that plan payments are subject to conflicting legal obligations. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148-49, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (footnote omitted); see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (states’ development of different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction would be “fundamentally at odds with the goal of uniformity that Congress sought to implement”). The question whether a state law is pre-empted by federal law is one of congressional intent, and the purpose of Congress is the ultimate touchstone. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Preemption occurs where a state law interferes with or is contrary to federal law, in which case, the federal law nullifies the state law. American Council of Life Insurers v. Ross, 558 F.3d 600, 604 (6th Cir.2009). 3. History of ERISA Pre-emption a. Express Pre-emption The Supreme Court has analyzed ERISA pre-emption both in terms of express pre-emption and implied conflict preemption. ERISA contains a provision which expressly pre-empts state laws: Except as provided in subparagraph (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. 29 U.S.C. § 1144(a). The term “State law” includes “all laws, decisions, rules, regulations or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). The ERISA express pre-emption provision is “clearly expansive.” California Div. of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 519 U.S. 316, 328, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). In Shaw, the Supreme Court noted that “Congress used the words ‘relate to’ in [§ 1144(a) ] in their broad sense.” 463 U.S. at 98, 103 S.Ct. 2890. The Supreme Court has held that a state law “relate[s] to” an employee benefit plan “ ‘in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (quoting Shaw, 463 U.S. at 98, 103 S.Ct. 2890). Section 1144(a) is not limited to state laws specifically designed to affect employee benefit plans; pre-emption may occur even where the effect of the state law is only indirect. Pilot Life, 481 U.S. at 47-48, 107 S.Ct. 1549. However, in later cases, the Court narrowed the application of § 1144(a), noting that the term “relate to” cannot be taken “to extend to the furthest stretch of its indeterminacy,” or else “for all practical purposes pre-emption would never run its course.” Travelers, 514 U.S. at 655, 115 S.Ct. 1671. The Court has also recognized that some state laws may relate to employee benefit plans in “too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. 2890. The Supreme Court has held that a state law which imposed requirements by “reference to” ERISA-covered programs was preempted where the existence of an ERISA plan was essential to the law’s operation. See District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 130-131, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992). In that case, a District of Columbia law provided: Any employer who provides health insurance coverage for an employee shall provide health insurance coverage equivalent to the existing health insurance coverage of the employee while the employee receives or is eligible to receive workers’ compensation benefits under this chapter. D.C.Code Ann. § 36-307(a-l)(l) (Supp. 1992). Despite the fact that the above provision does not mention the term “ERISA,” the Supreme Court found that the law specifically “referred to” welfare benefit plans which were regulated by ERISA, noting that the employees’ existing health insurance coverage was a welfare benefit plan. Greater Washington, 506 U.S. at 130-31, 113 S.Ct. 580. However, in a later case, the Supreme Court held that a state law which functioned irrespective of the existence of an ERISA plan “does not make reference to ERISA plans.” Dillingham Construction, 519 U.S. at 328, 117 S.Ct. 832. In Dillingham Construction, the court held that a state law which permitted a lower apprentice wage only to a contractor who acquired apprentices through an apprenticeship program sponsored by both labor and management, regardless of whether that program was funded through an ERISA plan, did not “make reference to ERISA plans” because the law treated both ERISA and non-ERISA plans funded out of an employer’s general assets alike. In De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806, 814-816, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), the Court found that a state tax levied upon health care facilities operated by an ERISA plan was not preempted, noting that the law did not require an employer to provide certain benefits, and that the existence of a plan was not a critical element of the state-law cause of action. See also Travelers, 514 U.S. at 649, 115 S.Ct. 1671 (state law that required hospitals to collect surcharges from patients covered by commercial insurer did not “relate to” employee benefit plans); Associated Builders & Contractors v. Michigan Dept. of Labor and Economic Growth, 543 F.3d 275, 280 (6th Cir.2008) (state rules which did not act immediately and exclusively upon ERISA plans and which did not depend on the existence of ERISA plans for their operation did not “make reference to” ERISA plans). The Supreme Court has also discussed the “connection to” branch of express pre-emption. “A law that does not refer to ERISA plans may yet be preempted if it has a ‘connection with’ ERISA plans.” Dillingham Construction, 519 U.S. at 325, 117 S.Ct. 832. To determine whether state law has a forbidden connection, this court must look to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive, as well as to the nature of the effect of the state law on ERISA plans. Id. The Supreme Court has held that state statutes that mandated employee benefit structures or their administration amounted to connections with ERISA plans. See Travelers, 514 U.S. at 658, 115 S.Ct. 1671 (citing FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) and Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981)). However, in Dillingham, the Court held that a state law which required that apprentices on public-works projects be paid the local prevailing wage unless the state had approved the apprenticeship program, in which case the contractor could pay the lower rate, was not preempted because it merely offered economic incentives for compliance, and the contractor could avoid the application of the statute by not working on public-works projects. Dillingham, 519 U.S. at 328-332, 117 S.Ct. 832. “The key distinction is between a statute that mandates or effectively mandates an aspect of law with which ERISA is concerned — i.e., a statute that mandates ‘employee benefit structures or their administration’ — and a statute that does not.” Associated Builders, 543 F.3d at 280. To pre-empt state law based on a “connection with” an ERISA plan, “(1) the law at issue must mandate (or effectively mandate) something, and (2) that mandate must fall within the area that Congress intended ERISA to control exclusively.” Id. at 281. For example, in Egelhoff, 532 U.S. at 147, 121 S.Ct. 1322, the Supreme Court held that a state law which provided for automatic revocation, upon divorce, of any designation of a spouse as beneficiary of a nonprobate asset, had an impermissible connection with ERISA plans because it bound plan administrators to a particular choice of rules for determining beneficiary status, and was pre-empted. The Court noted that “administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern.” Id. Specifically, ERISA provides that the plan shall “specify the basis on which payments are made to and from the plan” and requires plan fiduciaries to administer the plan “in accordance with the documents and instruments governing the plan” to a beneficiary who is “designated by a participant, or by the terms of [the] plan.” 29 U.S.C. §§ 1002(8), 1102(b)(4), and 1104(a)(1)(D). The Court in Egelhoff observed that, unlike generally applicable laws regulating “areas where ERISA has nothing to say, ... this statute governs the payment of benefits, a central matter of plan administration.” 532 U.S. at 148, 121 S.Ct. 1322. The Court in Egelhoff also concluded that the state law had a prohibited connection with ERISA plans because it interfered with nationally uniform plan administration. Id. at 148, 121 S.Ct. 1322. b. Conflict Pre-emption ERISA pre-emption can also take the form of implied or conflict preemption, which occurs where a state law operates within the scope of 29 U.S.C. § 1132(a), ERISA’s civil enforcement provisions. Ross, 558 F.3d at 607. In particular, § 1132(a)(1)(B) authorized a plan participant or beneficiary to bring a civil action to recover benefits due under the terms of the plan, to enforce rights under the terms of the plan, or to clarify rights to future benefits under the terms of the plan. These provisions are the “sort of overpowering federal policy that overrides a statutory provision designed to save state law from being preempted.” Rush Prudential, 536 U.S. at 375, 122 S.Ct. 2151. Conflict pre-emption is required where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Boggs v. Boggs, 520 U.S. 833, 844, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997). ERISA’s legislative scheme includes an integrated system of procedures for enforcement which is essential to accomplish Congress’ purpose of creating a comprehensive statute for the regulation of employee benefit plans. Davila, 542 U.S. at 208, 124 S.Ct. 2488. The provisions of § 1132(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. Pilot Life, 481 U.S. at 54, 107 S.Ct. 1549. “Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.” Davila, 542 U.S. at 209, 124 S.Ct. 2488. The manner in which the state cause of action is labeled is not determinative. Id. at 214, 124 S.Ct. 2488; see also Ingersoll-Rand, 498 U.S. at 142-45, 111 S.Ct. 478 (state tort of wrongful discharge based on employer’s motivation to avoid paying pension benefits conflicted with ERISA enforcement); Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) (label does not determine whether claim is pre-empted, but rather whether claim is in essence for recovery of an ERISA plan benefit). Likewise, the fact that the state cause of action attempts to authorize remedies beyond those authorized by ERISA is not sufficient to put the state law cause of action outside the scope of the ERISA civil enforcement mechanism. Id. at 214-215, 124 S.Ct. 2488. “Congress’ intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA [§ 1132(a) ] remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim.” Id. at 216, 124 S.Ct. 2488. The Supreme Court in Davila noted: If follows that if an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls “within the scope of’ ERISA [§ 1132(a)(1)(B)], [Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ]. In other words, if an individual, at some point in time, could have brought his claim under ERISA [§ 1132(a)(1)(B) ], and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’ cause of action is completely preempted by ERISA [§ 1132(a)(1)(B)], Id. at 210,124 S.Ct. 2488. In Davila, the respondents asserted a claim for denial of coverage under an ERISA employee benefit plan under a Texas law which imposed a duty on managed care entities to “exercise ordinary care when making health care treatment decisions[.]” Respondents could have brought an action under § 1132(a)(1)(B) to contest the denial of coverage and seek reimbursement for medical treatment expenses. Id. at 212, 124 S.Ct. 2488. The Court noted that if the managed care entity correctly concluded under the terms of the plan that respondents were not entitled to coverage, then the failure of the plan itself to provide coverage would be the proximate cause of any damages. Id. at 213, 124 S.Ct. 2488. The Court concluded that because the interpretation of the terms of respondents’ benefit plans formed an essential part of their state law claim, and because that claim existed only due to the administration of ERISA-regulated benefit plans, the state law cause of action was not entirely independent of the federally regulated ERISA plan and fell within the scope of § 1132(a)(1)(B) so as to be completely pre-empted. Id. at 213-214, 124 S.Ct. 2488. In Briscoe v. Fine, 444 F.3d 478, 498 (6th Cir.2006), the Sixth Circuit held that ERISA pre-empted state-law claims of fraud, misrepresentation and concealment based on a nonfiduciary defendant’s alleged failure to disclose a healthcare plan’s financial condition. The court noted that any duty to disclose the plan’s financial condition “arose not out of an independent source of law, but out of the existence and nature of the plan itself.” Id. at 499. The court concluded that the state-law claims served as an “alternative enforcement mechanism” and were therefore preempted by ERISA. Id. at 500. In McLemore v. Regions Bank, 682 F.3d 414 (6th Cir.2012), the Sixth Circuit considered whether the state-law claims brought by a bankruptcy trustee and former clients of an investment advisor against the bank where the advisor had maintained fiduciary accounts of defrauded employee benefit plans were pre-empted by ERISA. The court concluded that the claims depended on the existence of the plans, and because the claims arose not from an independent legal duty, but rather from the ERISA violations committed by the advisor, they sought an alternative enforcement mechanism for the legal duties imposed under ERISA. 682 F.3d at 425-26. A Pre-emption Analysis of the WFMLA The above cases indicate that over the years, the Supreme Court has become increasingly frustrated in trying to apply the definition of the statutory term “relate to” applicable to an express preemption analysis. See, e.g., Travelers, 514 U.S. at 655, 115 S.Ct. 1671 (noting “we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”). In the instant case, the application of the “connection with” part of the test is fairly straightforward, because the WFMLA: (1) mandates or effectively mandates the substitution and payment of STD benefits (2) which are provided pursuant to an ERISA plan, the payment of plan benefits being within the area that Congress intended ERISA to control exclusively. Associated Builders, 543 F.3d at 281. The WFMLA substitution provision also has a prohibited connection with ERISA plans because it interferes with nationally uniform plan administration. Egelhoff, 532 U.S. at 148, 121 S.Ct. 1322. The “refers to” branch of the analysis is less clear. When viewed in the context of Supreme Court precedent, the WFMLA substitution provision is most closely analogous to the state laws addressed in Shaw and Greater Washington which required an employer to furniéh certain types of benefits, and which were held to “relate to” or “refer to” ERISA plans so as to be pre-empted under § 1144(a). However, since the WFMLA substitution provision applies both to ERISA and nonERISA benefit plans, language in Dillingham might be read as indicating that the provision does not “refer to” ERISA plans. In determining whether express preemption exists, the Supreme Court has focused increasingly on “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Travelers, 514 U.S. at 656, 115 S.Ct. 1671. Congressional intent is also the main focus of a conflict preemption analysis. See Davila, 542 U.S. at 209, 124 S.Ct. 2488 (noting that “any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore preempted”). After consideration of the Supreme Court’s cases discussing ERISA pre-emption, the Sixth Circuit has identified three classes of state laws or claims which are subject to ERISA pre-emption. Those are claims based on state laws that: (1) mandate employee benefit structures or their administration; (2) provide alternative enforcement mechanisms; or (3) bind employers or plan administrators to particular choices or preclude uniform administrative practice, thereby functioning as a regulation of an ERISA plan itself. McLemore, 682 F.3d at 425 (citing Briscoe, 444 F.3d at 497). Turning to the first category, the WFMLA substitution provision, as applied to ERISA plans such as the Nationwide Plan, effectively mandates employee benefit structures and their administration. The WFMLA substitution provision was applied by the ALJ in Gerum to require Nationwide to pay what were clearly identified as ERISA plan benefits out of its general assets, despite the fact that the Trust Agreement, a Plan document, limits Nationwide’s liability for such benefits to monies which have been contributed to the Trust. Ex. 4, § 9.15. If Nationwide wishes to avoid having to pay substitution claims out of its general assets, it will have to amend the terms of its ERISA plan to create a new class of benefits which would satisfy WFMLA substitution claims, or create a separate ERISA plan for Wisconsin substitution claims. Thus, the WFMLA, as applied, effectively mandates ERISA benefit structures. The substitution provision was also utilized in Gerum as authority to order Nationwide, the Plan sponsor, to pay STD benefits to a Plan participant who was not “STD disabled” and who otherwise would not have be