Washington — The ERISA Industry Committee (ERIC) filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in Greene v. Progressive Corporation. The brief urges the court to affirm a district court decision dismissing claims that Progressive Corporation’s employee health plan violated ERISA by charging tobacco users and unvaccinated employees higher premiums.
Progressive gives employees a break on their health insurance premiums for skipping tobacco, and in 2022 offered the same discount for getting the COVID-19 vaccine. Two plan participants sued in 2024, claiming ERISA required a full retroactive refund of the surcharge and better notice of how to avoid it. A federal judge in Ohio disagreed and tossed the case in March 2026, ruling that dropping the surcharge going forward satisfies ERISA, that Progressive’s notices already matched the Department of Labor’s own model language, and that the wellness program was a plan sponsor decision, not a fiduciary one. Plaintiffs appealed to the Sixth Circuit.
“Congress wrote ERISA to encourage employers to offer wellness programs, not to punish them for it,” said Doug Hinson, Executive Director of the ERIC Legal Center. “Tobacco cessation incentives help employees live healthier lives and help keep coverage affordable for everyone in the plan. Nothing in the statute requires an employer to erase a surcharge retroactively once someone quits smoking or attends a class to help them do so, and courts should not read that requirement into the law.”
The case is one of the first of its kind to reach a federal appeals court on the merits, and the first to reach the Sixth Circuit. ERIC’s brief, which mirrors arguments the organization has made in similar appeals involving Compass Group and PepsiCo, explains that tobacco surcharges are a well-established, lawful tool for encouraging healthier workforces and that federal law gives employers broad flexibility to design these programs. The brief also argues that agency guidance requiring employers to offer an alternative to tobacco cessation for every tobacco user, regardless of medical need, cannot be squared with the statute Congress actually wrote.
Read the brief here.