What an Employer May Not Do Because of a Benefit You Use

Answer first: two prohibitions in one sentence, and the second is the wider one

The interference provision of the retirement income security statute is short enough to read in full, and its structure repays the attention.

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, the subchapter, a named tax code section, or a predecessor statute — or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, the subchapter, or that predecessor statute.

Everything before the dash is a retaliation prohibition: an action taken because a right was exercised. Everything after it is something different and broader: an action taken for the purpose of interfering with the attainment of a right the person may become entitled to. The second does not require that any right have been exercised, or even that one yet exists.

The list of prohibited actions is enumerated rather than general — discharge, fine, suspend, expel, discipline, or discriminate against — and the last of those is the open-ended one.

The section covers two further situations in its remaining sentences. It is unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to the chapter or the predecessor statute. And in the case of a multiemployer plan, it is unlawful for the plan sponsor or any other person to discriminate against a contributing employer for exercising rights under the chapter or for giving information or testifying in an inquiry or proceeding relating to it before Congress.

The statute links enforcement of this protection to its civil enforcement section. This article explains the prohibited conduct; it does not determine which civil remedies or procedures apply to an individual claim.

Who is bound, and the phrase that decides it

The subject of the sentence is not the employer. It is any person.

That matters for how the provision maps onto a real arrangement, because health benefits routinely involve several entities — the employer, the plan, a plan sponsor, an administrator, an insurer, a vendor. The prohibition as written is not confined to the entity that signs the paycheque.

The multiemployer sentence makes the same point from a different angle: there the protected party is a contributing employer and the potential wrongdoer is the plan sponsor or any other person. The provision is written to run in more than one direction.

The classes protected in the main sentence are participants and beneficiaries — terms defined elsewhere in the statute and not defined on this page — while the informant sentence protects any person who has given information or testified or is about to testify.

The companion section, which is a criminal one

Immediately after the interference provision sits a second, narrower section addressing a different kind of pressure.

It shall be unlawful for any person, through the use of fraud, force, violence, or threat of the use of force or violence, to restrain, coerce, intimidate, or attempt to restrain, coerce, or intimidate any participant or beneficiary for the purpose of interfering with or preventing the exercise of any right to which he is or may become entitled under the plan, the subchapter, the named tax code section, or the predecessor statute.

The means are exhaustive here in a way they are not in the interference provision: fraud, force, violence, or threat of the use of force or violence. That is what separates the two sections. The first covers employment actions; the second covers coercion by those specific means.

A willful violation can carry a criminal fine, imprisonment for up to ten years, or both. General federal fine provisions can affect the amount, so the historical dollar figure printed in this section should not be treated as a current penalty quote.

The word wilfully is doing work in that sentence: the criminal consequence attaches to a wilful violation, not to any violation.

Three narrower versions, aimed at health questions

Other rulebooks carry their own non-retaliation clauses, and each is tied to a specific mechanism rather than to plan rights generally.

The disability regulation makes non-retaliation part of the definition of voluntary. A wellness program that includes disability-related inquiries or medical examinations is voluntary only as long as the covered entity, among other things, does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of the Americans with Disabilities Act's own retaliation provision. Note the effect of putting it there: retaliation does not merely violate a separate rule, it destroys the voluntariness the permission depends on.

The same regulation adds a related bar in a different form. A covered entity shall not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information — except as the part permits to carry out specific activities related to the wellness program — or to waive any confidentiality protections in the part, as a condition for participating in a wellness program or for earning any incentive offered in connection with one.

The genetic information regulation carries a version aimed at a spouse's silence. A covered entity may not deny access to health insurance or any package of health insurance benefits to an employee, or to the employee's spouse or other covered dependent, or retaliate against an employee, due to a spouse's refusal to provide information about his or her manifestation of disease or disorder to an employer-sponsored wellness program.

It also bars conditioning participation, or providing any inducement to an employee or a spouse or other covered dependent, in exchange for an agreement permitting the sale, exchange, sharing, transfer or other disclosure of genetic information, or otherwise waiving the confidentiality protections of that part.

And in the monitoring context the same regulation states the rule plainly: a covered entity may not retaliate or otherwise discriminate against an individual due to his or her refusal to participate in genetic monitoring that is not required by federal or state law.

Reading the four together

The four provisions are not alternatives to each other. They sit in different statutes, protect different things, and are enforced through different routes.

The interference provision is about plan rights and covers a defined list of employment actions taken either because a right was exercised or in order to stop one from attaching. Its reach is any person, and its enforcement runs through the statute's own civil enforcement section.

The coercive interference section is about a narrow set of means — fraud, force, violence or threats of force or violence — and carries a criminal penalty for a wilful violation.

The disability rule's clause is structural: it makes the absence of adverse action, retaliation, interference, coercion, intimidation and threats a condition of the voluntariness on which the permission to ask medical questions rests.

The genetic information rule's clauses are specific to two situations that come up in wellness arrangements — a spouse who declines to answer, and an inducement conditioned on agreeing to disclosure or waiving confidentiality.

The common shape across all four is worth naming, because it is the useful takeaway: each of them treats the pressure to obtain something as a separate wrong from the thing obtained. A rule about what an employer may ask is a different rule from what an employer may do to someone who declines to answer, and these are the second kind.

None of this tells any reader that something that happened to them was unlawful, or that a claim exists, or how one would come out. Those are determinations on a specific record, and none is asserted or predicted here.