ERISA lawsuits plague employers’ wellness programs over tobacco surcharge disputes

Mayer Brown partner Richard Nowak was quoted in this article covering the recent guidance document published by the Departments of Labor, Treasury, and Health and Human Services in August 2026. The document was issued in response to the surge in ERISA lawsuits targeting employer wellness programs that include surcharges for tobacco use.

The guidance document “will help employers” focus on smoking cessation program strategies, said Nowak, “But it doesn’t have the force of law. It’s non-binding.”