Migliaccio & Rathod LLP is investigating whether GAF’s employee health plan administers tobacco-related health insurance surcharges in compliance with the Employee Retirement Income Security Act (“ERISA”) and federal wellness program regulations.
Federal law generally permits employers to impose tobacco-related premium surcharges through outcome-based wellness programs, but those programs ordinarily must provide employees who do not satisfy the tobacco-free standard with a reasonable alternative standard (“RAS”) that allows them to earn the full premium discount.
According to publicly available 2026 health plan materials, GAF imposes a tobacco-related premium surcharge on employees who certify tobacco use. The publicly available benefits documents also reference tobacco cessation resources but raise questions regarding whether employees are clearly informed of all reasonable alternative standards, physician-directed alternatives, timing requirements, and procedures for obtaining reimbursement of previously paid surcharges if they satisfy an alternative standard.
This investigation seeks to determine whether GAF’s tobacco surcharge program complies with ERISA’s wellness program requirements and whether employees paid tobacco-related premium surcharges that should not have been assessed.
What Employees Report
Employees report:
- Paying tobacco-related health insurance premium surcharges.
- Receiving limited information regarding how to eliminate the surcharge.
- Participating in tobacco cessation efforts without understanding how those efforts affected the surcharge.
- Uncertainty regarding physician accommodations or other reasonable alternatives.
- Continuing to pay increased premiums despite participating in wellness activities.
- Difficulty determining whether previously paid surcharges could be refunded.
Why Employees Should Be Concerned
Federal wellness program regulations generally require outcome-based tobacco programs to provide every participant who does not satisfy the tobacco-free standard with a reasonable alternative standard for earning the full premium reward.
If employees are not adequately informed of available alternatives or if surcharge administration prevents eligible participants from earning the full premium discount, employees may pay significantly more for health insurance than federal law permits.
This investigation seeks to determine whether GAF properly administered its tobacco surcharge program and whether affected employees may be entitled to reimbursement of improperly assessed tobacco surcharges.
Potential Claims May Include
- ERISA Violations
- Failure to Provide a Reasonable Alternative Standard
- Improper Wellness Program Administration
- Breach of Fiduciary Duty
- Recovery of Improperly Assessed Tobacco Surcharges
- Declaratory and Injunctive Relief
Signs You May Be Affected
You may be affected if:
- You participated in GAF’s employee health plan.
- You paid a tobacco-related premium surcharge.
- You participated in a tobacco cessation or wellness program.
- You were not clearly informed about reasonable alternatives or physician accommodations.
- You continued paying the surcharge despite participating in cessation efforts.
- You still possess payroll records, enrollment materials, or benefits communications concerning the surcharge.
If you believe you encountered these issues, we would like to hear from you. Please complete the contact form on this page, send us an email at [email protected], or give us a call at (202) 470-3520.