On February 3, 2026, a federal court in Missouri granted a motion to dismiss a tobacco premium surcharge lawsuit. This is the second time that a defendant has successfully obtained dismissal of such a case, in its entirety, at the pleadings stage. 

More than 50 lawsuits have been filed against employers challenging their imposition of a premium surcharge on participants who use tobacco. The key issue in these cases is whether employers can prospectively remove the premium surcharge when the participant completes a wellness program (typically a tobacco cessation course). Plaintiffs have argued that the employer is required to retroactively reimburse participants the surcharge amount, going back to the beginning of the plan year, upon completion of the wellness program. 

In Plesha v. Ascension Health Alliance, a court in the United States District Court for the Eastern District of Missouri rejected the plaintiffs' theory. The court held that Congress gave employers flexibility in crafting wellness programs, including the option to provide a premium discount for completing the program on a going-forward basis only. In support of its reasoning, the court cited a recent decision by a court in the United States District of Rhode Island that similarly found that an employer is not required to retroactively reimburse premium surcharge amounts to participants who complete a wellness program. 

The Plesha court also dismissed the plaintiffs' claims that the employer failed to provide sufficient notice of the wellness program on the basis that they lacked Article III standing to assert this claim. The plaintiff failed to allege plausibly that they were injured as a result of the purported notice violation.

The recent decisions by the Eastern District of Missouri and the District of Rhode Island mark a potential shift in favor of employers in the current wave of tobacco premium surcharge litigation. That being said, we anticipate that the plaintiffs' bar will continue to file additional lawsuits.