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Workplace Wellness Law with Barbara Zabawa
Estimated reading time: 7 minutes
In this week’s episode, Nick sits down with Barbara Zabawa, founder of the Center for Health and Wellness Law, law professor, and host of the Wellness Law Podcast. A former insurance company attorney who carved out a specialty that barely existed, Barbara brings rare clarity to the legal risks hiding inside employer wellness programs. The conversation covers why tobacco surcharge lawsuits are the new compliance frontier, what AI-generated legal documents actually look like to a practicing attorney, and a new employee benefit concept she believes could address structural barriers to health.
Pressed for time? Here’s a quick summary…
- The wave of ADA and GINA lawsuits that hit employers like Honeywell and Yale University in the mid-2010s are no longer the lawsuits employee wellness programs are facing today
- Over 40 tobacco surcharge lawsuits are currently pending against Fortune 500 companies, alleging that employers are not properly applying the Affordable Care Act’s reasonable alternative standard, specifically by reducing surcharges only going forward when an employee qualifies rather than reimbursing retroactively
- Without an objective EEOC threshold for what makes an incentive coercive, the best thing employers can do is survey their own workforce: voluntariness is subjective to the employee, not the employer, and a modest reward for a high earner can feel compulsory to someone earning an hourly wage
- Lawyers are encountering AI slop firsthand when clients present them with AI-generated memos expecting a quick sign-off, but a lawyer still has to verify every line and correct every error, which typically takes longer and costs more than if the client had simply asked their question directly
- Barbara’s academic research focuses on wellness legal partnerships: an employer-sponsored but employer-independent benefit staffed by lawyers, social workers, and health coaches who help employees address the social and structural barriers to health that traditional wellness programs cannot reach
Episode Summary
The Legal History of Workplace Wellness Programs
Barbara Zabawa did not start out as a lawyer. Before law school, she earned a master’s in public health from the University of Michigan and completed a one-year fellowship in occupational health and wellness. A professor suggested she consider law. She did, and eventually found that the two fields she loved—health and law—had almost no overlap in formal practice. There was no wellness law curriculum, no wellness law specialty in most firms, and no one showing up at wellness conferences with a JD.
That gap became her career. When the Affordable Care Act went into effect and corporate wellness programs began building incentive structures to comply with its rules, employers had nowhere to turn for legal guidance. Barbara wrote a book, built a practice, and began the work of establishing wellness law as a recognized specialty alongside environmental law, employment law, and tax law.
The legal history she walked through in this episode explains why that specialty matters. In 2014 and 2015, a wave of ADA and GINA lawsuits hit employers like Honeywell and Yale University, over wellness programs that tied large financial penalties to participation in health risk assessments and biometric screenings. The core legal question was whether or not a program could be considered voluntary if declining to participate costs the employee a large portion of their health insurance premium?
Courts disagreed. Some said the insurance safe harbor under the ADA protected employers. Others said penalties that high crossed the line into compulsion. The EEOC stepped in with rules in 2016, defining voluntary participation as participation in programs where the incentive did not exceed 30% of the employee-only cost of coverage—pegged to what the ACA had already established. AARP immediately sued, arguing the EEOC had no basis for picking that number, and AARP won. The rules were pulled. The EEOC briefly proposed new rules in 2020, and those were withdrawn in early 2021 when the Biden administration took office. Nothing has been issued since.
The result is that employers have been operating in a subjective legal environment for years, designing wellness incentives without a clear federal definition of what crosses the coercion line.
Where Litigation Stands Today: Tobacco Surcharges
The ADA class action era has largely passed. What has replaced it is quieter, more specific, and more technical: tobacco surcharge litigation under the Affordable Care Act.
More than 40 cases are currently pending against Fortune 500 companies. The allegations follow a consistent pattern. Employers impose surcharges on employees who use tobacco. Employees can satisfy a reasonable alternative standard (e.g., smoking cessation program, prescription, qualifying medical accommodation) to have the surcharge reduced or waived. The legal dispute is not about whether the surcharges are permitted; it is about how they are applied once the employee meets the standard. The ACA requires that when an employee satisfies the reasonable alternative, the employer must make the surcharge reduction available. Plaintiffs argue that large employers are applying that change only prospectively, going forward from the date the employee completes the program, rather than retroactively reimbursing the employee for the months when they were paying the surcharge while working toward meeting the standard.
Barbara’s summary of the legal landscape: some cases are settling, some have been dismissed, some are still moving forward. The takeaway for employers is that even well-resourced employers with compliance teams can find themselves in litigation over technical ACA requirements they believed they were meeting. The plaintiff’s bar is actively looking for gaps between how employers have implemented these programs and how the law has been interpreted.
AI Slop in the Legal World
Nick brought up a topic that comes up regularly in Wellable Weekly: AI and its impact on professional services. Barbara often sees the impacts firsthand.
Clients arrive at her firm with AI-generated documents—sometimes a 37-page memo on wellness law compliance, sometimes a contract draft—expecting a quick review and sign-off. The logic is appealing: if AI has done the research and organized the analysis, the lawyer just needs to bless it, saving time and therefore money.
Barbara described why this does not work in practice. A lawyer still has to review every line and verify every source. Often times, a 37-page document is slower to review than a direct question, because the lawyer has to evaluate every claim rather than starting from their own knowledge. “It doesn’t save them any money,” Barbara said. “In fact, I think it costs more.”
Nick added another dimension: the legal market is probably being disrupted not just by clients who bring AI documents to lawyers, but by clients who used to hire lawyers and now don’t. If someone has a lease reviewed by AI and nothing goes wrong, they walk away thinking AI served them perfectly. The problem only surfaces when a dispute arises and the lease turns out to be less protective than it looked.
Barbara’s summary: AI is only as good as what you know to ask and whether you can recognize a good answer. Without expertise in the field, you cannot evaluate the output.
The Wellness Legal Partnership: A New Employee Benefit Concept
Barbara describes the research she is currently conducting on what she calls the wellness legal partnership.
The concept starts from a premise that most employer wellness programs accept implicitly: employee behavior is the lever. If employees eat better, exercise more, manage stress, or stop smoking, health outcomes improve. However, this framing leaves out a category of problems that affect employee well-being and that employees cannot address through behavior change alone.
Social and structural determinants of health are responsible for a large share of health outcomes. These are not addressed by step challenges.
Barbara’s wellness legal partnership concept would provide employees access to a multidisciplinary team (e.g., lawyers, social workers, health coaches) through an employer-sponsored benefit that is independent from the employer. The independence matters. Employees dealing with a workplace dispute, for example, are unlikely to seek help from HR. A benefit that sits outside the organizational chain of command changes the calculus.
She is currently conducting a survey of nurses using vignettes to test whether employees would actually use such a service if it were made available. The survey compares willingness to use HR, a hotline, an EAP, a wellness legal partnership, and an AI tool across a range of situations that affect well-being. Her hypothesis is that for at least some situations, particularly those involving legal complexity or sensitivity, employees would prefer a wellness legal partnership over the alternatives. If the data supports it, she would like to see it piloted in an actual employer setting and study the effect on measurable wellbeing outcomes over time.
A Closing Prediction
Barbara closed with a prediction that Nick described as the hopeful view he holds for the field: wellness will become the antidote to AI fatigue. As AI makes us question our humanity, wellness will help us rediscover it. The tools, programs, and practices that connect people to their physical selves, to each other, and to the experience of being human are going to matter more, not less, as AI expands.
Frequently Asked Questions
Wellness law is a specialized legal practice area focused on the legal dimensions of workplace wellness programs, wellness industry services, and employee health benefits. For employers, it covers compliance with the ADA, GINA, and the Affordable Care Act as they apply to wellness incentive programs, data collection, tobacco surcharges, and related benefits. Most general business lawyers have limited familiarity with this space, which means employers often don’t realize they have compliance exposure until a lawsuit or regulatory inquiry surfaces.
Less so than in the mid-2010s, but the risk has not disappeared. The EEOC issued rules in 2016 defining what constitutes a voluntary wellness program for ADA purposes, AARP sued and those rules were pulled in 2019, and no replacement guidance has been issued. Employers are operating under a subjective standard for what constitutes voluntary participation. The best practice is to understand your specific workforce’s financial circumstances and design incentive levels accordingly, particularly for programs that require employees to disclose health information.
Over 40 tobacco surcharge lawsuits are currently pending against Fortune 500 companies under the Affordable Care Act. The typical allegation is that employers only apply the surcharge reduction prospectively once an employee meets the reasonable alternative standard, rather than reimbursing retroactively. Some cases have settled, some have been dismissed, and others are ongoing. Employers with tobacco surcharge programs should review their administration of the reasonable alternative standard against current legal interpretations.
AI slop is the term Barbara uses for AI-generated legal content that looks plausible but is incomplete, inaccurate, or poorly reasoned. The problem for employers and individuals using AI for legal tasks is that evaluating AI output requires the same legal expertise that would have been needed to produce it correctly in the first place. A lawyer reviewing an AI-generated document still has to verify every source and correct every error — and a 37-page AI-generated memo often takes longer and costs more to properly review than a direct client conversation would have.
A wellness legal partnership is a concept Barbara Zabawa has developed and is researching. The idea is to provide employees with access to an independent, employer-sponsored team of lawyers, social workers, and health coaches who can help them address social and structural determinants of health — legal problems, housing instability, financial disputes — that fall outside what traditional wellness programs address. No large-scale employer implementation exists yet; Barbara is currently conducting feasibility research to test whether employees would use such a benefit and what situations it would be most valuable for.
Barbara’s prediction is that wellness will become more important, not less, as AI develops. As AI automation raises questions about what it means to be human, the practices and programs that connect people to their physical wellbeing and to each other will carry more value. Employers who invest in genuine, human-centered wellbeing infrastructure now may find themselves better positioned as AI fatigue becomes a real workplace phenomenon.
Full Episode Transcript
Nick: Welcome to the Wellable Weekly Podcast, where we talk about key topics and trends at the intersection of wellbeing, technology, and HR. I’m your host, Nick. I’m with a good friend of mine I don’t think I’ve talked to in years, named Barbara, who is a wellness attorney. She’s also a podcast host, and her podcast title sums it up perfectly: the Wellness Law Podcast. Barbara, welcome to the show.
Barbara: I’m thrilled to be here, Nick. Thank you for inviting me.
Nick: So a question I think I’ve always had but never got to ask you personally: wellness law is a very specific type of legal practice within a broader legal framework. How did you end up in that specific domain?
Barbara: My interest in wellness predates my interest in law. Before law school, I studied public health at the University of Michigan, got my master’s in public health, and was interested in health behavior and health education. I had a one-year fellowship abroad focused on occupational health and wellness. While I was at Michigan, one of my professors said, “You should think about going to law school — it’ll open up more doors for you.” There was no such thing as wellness law in law school. There really still isn’t anything officially called wellness law in the curriculum — I’m trying to change that. I specialized in healthcare law, then practiced traditional healthcare law and insurance law, went in-house at a big insurance company working on Affordable Care Act and HIPAA privacy. After I left that position, I went out on my own and thought, “I still love wellness — that predates my love of law — and I wonder if there’s a way to weave the two together.”
The Affordable Care Act had just gone into effect and corporate wellness programs were implementing programs to comply with the incentive rules. I started going to conferences and noticing that no lawyers were there. When people found out I was a lawyer, they had all kinds of questions — they wanted to be compliant but had no resources to know if they were. That’s what prompted me to write my first book, Rule the Rules of Workplace Wellness Programs, and I just started specializing in wellness law. It has expanded beyond corporate wellness to practitioners who aren’t licensed by states, to startups developing AI-driven wellness tools, to nutritional supplements — the industry is huge and growing, and I’m trying to define it as a legitimate legal practice area the way environmental law and employment law are.
Nick: I remember right around the time of the ACA, I was blogging a lot and covering what felt like a wave of big EEOC cases tied to wellness programs — Honeywell was a big one, Yale University was another. But I just don’t see many of those kinds of cases hitting the front page anymore. Can you clarify what that legal era was and where things stand today?
Barbara: You’re very correct. When I first started in 2014 and 2015, there was just a slew of lawsuits brought against employer wellness programs for violating the ADA and GINA. Some of those employers were imposing 100% of the total cost of coverage on employees who didn’t participate — participation in that context meant giving health information through biometric screens or health risk assessments. The central legal question was whether programs could truly be “voluntary” when the incentive was that high. Courts were split: some said the insurance safe harbor applied and there was no ADA violation, others said the penalty crossed the line.
In 2016, after these cases, the EEOC issued rules defining what constitutes a voluntary wellness program if you’re collecting employee health information and tying incentives to that participation. They pegged the voluntary threshold to 30% of the employee-only cost of coverage, matching what the ACA had set. Almost immediately after those rules came out, AARP sued the EEOC over how those percentages were determined. The litigation ran for a couple of years, AARP won, and the court told the EEOC to pull back those rules. So we went from an objective number defining “voluntary” to a subjective standard — and the EEOC promised to issue new rules, briefly attempted to in 2020 under the first Trump administration, and then those were yanked in early 2021 when Biden took office. We haven’t seen anything since.
You’re right that we don’t see the big ADA wellness lawsuits the way we did ten years ago. What’s prominent now is tobacco surcharge litigation — over 40 cases currently pending against Fortune 500 companies alleging that their tobacco surcharge programs don’t comply with the Affordable Care Act. The typical allegation is that when an employee meets a reasonable alternative standard, the employer only reduces their surcharge prospectively rather than retroactively reimbursing them for the period before they met the standard. Some of these cases are settling, some have been dismissed, some are still moving forward — but the lesson is that even if you thought you were in compliance, the plaintiff’s bar will find ways to test that.
Nick: Going back to the voluntary definition question — the core issue in those Honeywell-era cases was that technically you could opt out, but when the financial penalty is that high, it’s not really a choice for lower-wage employees.
Barbara: Exactly. Voluntariness is subjective to the employee, not the employer. Even a small reward can have significant coercive value if you’re making less money. And that voluntary analysis under the ADA really only applies to data collection activities — health risk assessments, biometric screens. The ADA’s concern is about compelling employees to disclose health information. For other types of wellness activities, like walking challenges, the ADA’s primary concern is accessibility: you need to accommodate employees who can’t participate due to a disability, but that’s a different issue than voluntariness. Without an objective threshold from the EEOC, the best thing an employer can do is actually survey their workforce — understand what incentive level feels coercive to their specific employee population, and make program design decisions based on that.
Nick: On a tangent — I read about a rise in smoking among tech workers in San Francisco, specifically among AI researchers. Apparently one cohort is smoking because they believe AI is going to kill us all, so why not. Another cohort is smoking as a flex because they’re so confident AI will cure cancer that they’re not worried about the consequences.
Barbara: I had not read that particular angle, but I have read about an uptick in smoking in Silicon Valley. The AI-will-cure-cancer rationale is something else.
Nick: What’s your broader take on AI and the legal profession? You’re teaching law students who are about to enter the workforce — what are you seeing and telling them?
Barbara: Loaded question. AI is not there yet from a legal standpoint. I have clients who bring me AI-generated documents — sometimes a contract, sometimes a 37-page memo a client had AI produce as homework before hiring a lawyer. The thinking is, “If AI has done all this legwork, I’ll save the lawyer time and therefore money, and just pay for the blessing at the end.” Unfortunately, most of what clients bring me is slop. It doesn’t save them money — in fact it usually costs more, because a lawyer still has to carefully review every line, verify every source, and dissect what AI produced before they can give a reliable opinion. That takes longer than if the client had just asked the question directly.
Same with contract drafting. Clients say, “I had AI draft me this contract, can you just make sure it’s okay?” Unless you’re trained in the discipline you’re asking AI to perform, you have no idea if the output is any good. You’re asking the lawyer to review every line and compare it against what they would have done — that doesn’t save time. AI is only as good as what you know to ask it, and what you know is a good answer. If you’re asking it to do something you’re not trained to do or evaluate, you cannot tell good from bad without paying an expert to tell you.
Nick: Two things can be true simultaneously: the tools as they exist today may not be capable of replacing lawyers, but they can still disrupt the market. There’s a segment that would’ve come to you before and now won’t — they’ll run with the 37-page memo, never enter the traditional legal market, and in most cases nothing will go wrong because most contracts are only important when there’s a dispute. So they’ll walk away thinking AI served them perfectly, never knowing what risks they accepted.
Barbara: That’s exactly the trap. You don’t know what you don’t know. The contract will look fine to you. You probably haven’t read every line and understood every risk. If no dispute arises, you’ll never find out. If one does, you’ll be surprised by what you actually agreed to. That’s the gamble.
Nick: Tell us about your current research.
Barbara: I’m working on a concept called the wellness legal partnership, and I’ve written about it in several law review articles. We’re currently designing a study — surveying nurses through a series of vignettes describing workplace situations that affect wellbeing. We ask them: if you found yourself in this situation, what resources would you use if they were available? HR? A hotline? An EAP? A wellness legal partnership? An AI tool? The goal is to understand where employees feel most comfortable going for help when they’re dealing with something that affects their wellbeing — whether it’s a problem at work, a housing issue, a legal dispute, something at home.
A wellness legal partnership would be employer-sponsored but independent from the employer — staffed by lawyers, social workers, and health coaches who help employees address social and structural determinants of health. Not behavior change programs, but help addressing the environment around them: legal problems, financial instability, housing insecurity, the things that get in the way of wellbeing that a step challenge can’t touch. My hypothesis is that for at least some situations, employees would prefer this kind of independent, professionally staffed resource over going directly to HR or using an AI tool. And if the data supports it, I’d love to see it actually implemented somewhere and measure employee wellbeing before and after.
Nick: How do listeners stay updated on your work?
Barbara: The Wellness Law Podcast is available on Apple, Spotify, and all the major channels. You can subscribe to my Substack — I’m @barbarazabawa there. The website is wellnesslaw.com, where you can sign up for the newsletter. I’m on LinkedIn under Barbara Zabawa, and on Instagram and Facebook as Center for Health and Wellness Law.
Nick: We always close guest episodes with a prediction — doesn’t have to be about employee wellbeing, though that’s the topic. What do you have?
Barbara: I think the advent of AI is going to help humans focus on their humanity. And I think wellness is going to become the antidote to AI fatigue. AI is going to make us question our humanity, and wellness is going to help us rediscover it. I think wellness becomes even more important as AI continues to develop, not less.
Nick: That’s a really good one, and I generally agree. That’s the hopeful, optimistic view I hold for the field. Thank you so much for joining us today, Barbara. Really appreciate it.
Barbara: Thank you for the opportunity, Nick.
Nick: And as always, thank you to our listeners for tuning in. You can catch us on Apple Podcasts, Spotify, and wherever you get your podcasts. Be sure to like, subscribe, and sign up for the Wellable Weekly newsletter for the latest insights. Thank you.
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