What is nondiscrimination testing?

A cafeteria plan and its component benefit plans enjoy favorable tax treatment by the IRS.  As a result, the IRS requires these plans to undergo yearly non-discrimination testing.  The goal behind the testing is to ensure plans do not discriminate in favor of highly compensated or certain key employees.  This generally means that employers should not be offering better benefit options or contributions specifically to highly compensated employees.  The IRS Code offers specific definitions of who is considered a highly compensated, or key employee.  These types of employees are defined differently for different component benefits of a cafeteria plan.  Plans that must be tested include section 125 cafeteria plans, self-insured health plans, flexible spending accounts (FSA), dependent care FSAs, group term life insurance, self-insured health reimbursement arrangements (HRA), and health savings accounts (HSA). There are 9 different types of nondiscrimination tests; which ones apply to an employer’s plans will depend on the structure of the arrangement and which benefits are available.


What do the tests involve?

These plans must pass a series of tests.  Some of the tests involve eligibility, which looks at who can participate; benefits and contributions, which considers what benefits are being offered; and utilization, which contemplates who actually uses the benefits and to what extent.


What are the consequences of failing the tests?

Failing non-discrimination testing has negative consequences for all highly compensated and key employees receiving the discriminatory benefits.  These employees will lose their ability to receive benefits on a pre-tax basis.  Non-highly compensated employees will not be affected.

The plan will not cease to be a qualified plan if it fails testing, however employers may be subject to additional taxes that were underpaid, as well as any accompanying interest and penalties.  The employer would also be responsible for amending any employee W-2s.


Employer Action Items:

  • Have non-discrimination testing conducted before the end of the year.

For employers on calendar year plans, the end of the year is approaching.  Employers need to reach out to their respective vendors to set up nondiscrimination testing.  It is recommended the employer leave enough time to make any needed plan changes before the end of the year.  Most employers use a vendor to conduct nondiscrimination testing and many employers tend to begin working on testing in October or November for a calendar year plan.

  • Review the results.

If the test fails, there may be time for the employer to remedy the various plans.  It is possible that participant elections may be changed or plan design changes may be made to ensure plans are nondiscriminatory.  If a plan fails testing, employers should check in with their testing vendor to ensure all testing strategies have been utilized before making plan changes or taxing benefits.  Please reach out to your Client Service Manager if you have any questions about non-discrimination testing requirements.



The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.

Joanna Castillo– Joanna is the Client Compliance Manager for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Joanna enjoys live music, college football, travel, and walking her dog in Golden Gate Park.