nondiscrimination testing

What is Nondiscrimination Testing?


If your company offers any form of a pre-tax welfare benefits plan such as group Medical, Dental, Vision or Life insurance (commonly referred to as a Premium Only Plan or (POP), or a Flexible Spending Account (commonly referred to as an FSA or Cafeteria Plan, there is an IRS requirement to test your benefit plan for Nondiscrimination Testing on an annual basis. The tests are designed to make sure that the company is treating all of its employees fairly in regards to their benefits package and not giving highly compensated employees a better benefits package than their lower-paid or non-management employees.

Who Needs to Test and When?

Everyone! While it is easy to overlook, nondiscrimination testing is an essential piece of a company’s compliance requirements. If an employer does not perform this annual testing or does not adequately follow the steps necessary for this testing, it could lead to some hefty consequences, including losing their ability to offer pre-tax welfare benefits to their employees. 

How many Nondiscrimination Tests are there?

Depending on what type of benefits your company offers, there are up to nine different tests that may need to be administered. Some tests are related to eligibility and availability of benefits, and some are based on how many employees have elected these benefits. We have included a list of tests that are required for each of the most common benefit packages companies offer: 

  • The Key Employee 25% Concentration Test applies to all pretax benefits provided under the plan. No more than 25% of the aggregate of all non-taxable benefits may be provided to key employees. This would include anything paid pretax (by an employee) or provided on a nontaxable basis (by the employer), including Group health, term life, or disability coverage premiums Health and Dependent Care FSA Contributions to an HSA. The Dependent Care 55% Average Benefits Test applies only to the Dependent Care FSA.
  • The 105h Nondiscrimination Testing is passed if the average benefit provided to employees who are non-HCEs is at least 55% of the average benefit provided to HCEs. Benefits under an employer-sponsored health plan generally are not taxable due to a special section of the Code, which excludes the value of those benefits from taxation. However, to ensure that employers do not improperly discriminate in favor of Highly Compensated Individuals (“HCIs”), Congress created nondiscrimination rules under Code Section 105(h). Currently, Code Section 105(h) only applies to self-funded health plans. A plan is generally treated as self-funded, even if the plan has stop-loss insurance. Also, the Affordable Care Act (“ACA”) provides that non-grandfathered, fully insured health plans will also be subject to rules “similar” to Code Section 105(h).

The 105(h) Test is designed to verify two things:

    1. First, “enough” non-HCIs “benefit” under the health plan, in comparison to the number of HCIs who “benefit.” 
    2. Second, to verify that the health plan’s benefits (e.g., deductible levels and covered benefits) do not favor HCIs.
  • The 5% of Owners Test also applies only to Dependent Care FSA. Not more than 25% of the amounts for dependent care assistance during the year may be provided for shareholders or owners (or their spouses or dependents) who own more than 5% of the stock, the capital, or profits interest in the employer (on any day of the year).
Scroll to Top