Dowling Discusses Employer Smoking Surcharge Litigation in Bloomberg Law

10.05.2026

Stinson LLP Partner Thomas R. Dowling was interviewed by Bloomberg Law for "Bally's Class Action Launches Circuit Reviews of Smoking Penalties," discussing the wave of class action lawsuits targeting employer tobacco surcharges on health insurance premiums and the bellwether federal appeals court proceedings that may shape the future of this litigation trend.

The article examines the more than 80 recent lawsuits accusing employers of charging smoking penalties without satisfying the statutory and regulatory requirements governing employee wellness programs. Federal district courts are deeply split on these claims, with lawsuits moving forward against some employers while similar claims against others have been dismissed. The First Circuit is the first federal appeals court to hear oral arguments in this wave of class actions, with appeals also pending in the Second, Sixth, Seventh and Eighth Circuits.

Dowling noted that the outcome of Williams v. Bally's Management Group, LLC could have a significant effect on the broader litigation landscape. "If one goes poorly, it provides a framework — even if there's a split among courts — it provides a framework that would allow plaintiffs to continue these lawsuits," Dowling said.

Dowling added that recent guidance from the Department of Labor's Employee Benefits Security Administration states that employers are not required to refund past smoking penalties after an employee completes a cessation program. "While a court could theoretically go in a different direction, I think it's instructive and most courts would lean on that type of guidance," he said.

As Co-Chair of Stinson's national Labor, Employment and Employee Benefits practice, Dowling focuses on employee benefit matters including developing and maintaining health and welfare, retirement and deferred compensation plans. He has extensive experience designing wellness programs to comply with HIPAA, GINA and the ADA and regularly advises employers, insurers and PBMs on health plan regulatory compliance.

To read the full interview, visit Bloomberg Law.