On March 20, 2026, in Greene et. al. v. Progressive Corp., a federal judge for the U.S. District Court for the Northern District of Ohio dismissed a tobacco cessation and COVID vaccine premium surcharge lawsuit for its failure to state a claim. The lawsuit was brought by current and former employees of Progressive Corp. (Progressive) who had paid a tobacco and/or COVID vaccine premium surcharge to maintain coverage under Progressive’s Health, Life and Disability Plan (the “Plan”). They alleged that the Plan’s tobacco and COVID vaccine wellness programs violated ERISA’s antidiscrimination provisions because the company did not retroactively reimburse surcharges for employees who met an alternative standard mid-year, thus failing to provide the “full reward,” and because the plan documents failed to adequately disclose the availability of a reasonable alternative standard for the removal of the surcharge. The Plaintiffs also alleged a fiduciary breach claim, alleging that Progressive mishandled plan assets by improperly retaining the surcharge amounts. The Court dismissed the complaint, holding that 1) Progressive was not required to retroactively reimburse the surcharge; 2) Progressive’s notice of their reasonable alternative standard was compliant with applicable requirements; and 3) fiduciary standards did not apply to the challenged conduct, which involved implementing non-discretionary plan terms.  There has recently been an uptick in the number of similar lawsuits challenging the imposition of premium surcharges on tobacco users. While Courts have been split on this issue, the Ohio court’s decision, along with other recent decisions, may suggest a shift in favor of employers and plan sponsors.