
Federal Agencies Issue FAQs Addressing Key Issues in Health Plan Tobacco Surcharge Lawsuits
On Aug. 26, 2026, federal agencies released FAQs addressing topics that have been the focus of numerous class-action lawsuits challenging health plan surcharges for tobacco users. Wellness programs that impose a health plan premium surcharge (or provide a reward) based on a health-related standard (e.g., using tobacco) must adhere to specific standards for health-contingent wellness programs.
In general, the lawsuits allege that the tobacco surcharges violate these standards because the full reward was not provided for completing the alternative standard midway through the year and employees were not notified about a reasonable alternative standard to avoid the surcharge.
The FAQs provide that the federal agencies will not take enforcement action against a wellness program just because it provides a reward corresponding to the period after the reasonable alternative standard is satisfied (but not retroactively to the beginning of the plan year) for individuals who qualify for the reward partway through the year.
In addition, the FAQs clarify that the availability of a reasonable alternative standard must be disclosed in all materials describing the wellness program and, for outcome-based wellness programs, in any disclosure that an individual did not satisfy an initial outcome-based standard. However, if plan materials merely mention that such a program is available, without describing its terms, this disclosure is not required.
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