- Employee Benefits
- 23 comments
Some employers may want to be selective and treat employees differently for purposes of group health plan benefits. For example, employers may consider implementing the following health plan designs:
- A health plan “carve-out” that insures only select groups of employees (for example, a management carve-out);
- Different levels of benefits for groups of employees; or
- Employer contribution rates vary based on employee group.
In general, employers may treat employees differently, as long as they are not violating federal rules that prohibit discrimination in favor of highly compensated employees. These rules currently apply to self-insured health plans and arrangements that allow employees to pay their premiums on a pre-tax basis. The nondiscrimination requirements for fully insured health plans have been delayed indefinitely.
Employers should also confirm that any health plan rules do not violate other federal laws that prohibit discrimination. In addition, employers with insured plans should confirm that carve-out designs comply with any minimum participation rules imposed by the carrier.
Health Plan Design – General Rules
In general, a health plan will not have problems passing any applicable nondiscrimination test when the employer treats all of its employees the same for purposes of health plan coverage (for example, all employees are eligible for the health plan, and the plan’s eligibility rules and benefits are the same for all employees). However, treating employees differently may make it more difficult for a health plan to pass the applicable nondiscrimination tests.
Examples of plan designs that may cause problems with nondiscrimination testing include:
- Only certain groups of employees are eligible to participate in the health plan (for example, only salaried or management employees);
- The health plan has different employment requirements for plan eligibility (for example, waiting periods and entry dates) for different employee groups;
- Plan benefits or contribution rates vary based on employment classification, years of service or amount of compensation (for example, management employees pay a lower premium or receive additional benefits); or
- The employer maintains separate health plans for different groups of employees.
Before implementing one or more of these plan designs, employers should confirm that the arrangement will comply with any applicable rules that prohibit discrimination in favor of highly compensated employees. Under currently applicable law, if a health plan is discriminatory, highly compensated employees will lose certain tax benefits under the plan.
| Impact of Common Ownership: For nondiscrimination testing purposes, the Internal Revenue Code (Code) treats two or more employers as a single employer if there is sufficient common ownership or a combination of joint ownership and common activity. Thus, if companies are part of the same controlled group or affiliated service group under Code Sections 414(b), (c) or (m), all employees of those companies must generally be included in the nondiscrimination testing. |
In addition, employers should confirm that their health plan design complies with other federal laws that prohibit discrimination, such as Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, color, religion, sex and national origin) and the Health Insurance Portability and Accountability Act (HIPAA), which prohibits discrimination based on a health factor.
Employers with fully insured health plans should also confirm that their plan design complies with any requirements imposed by the carrier, such as restrictions on the type of carve-out group the carrier will accept and minimum participation requirements.
Fully Insured Health Plans
Currently, fully insured health plans are not subject to nondiscrimination testing. The Affordable Care Act (ACA) includes a requirement that non-grandfathered, fully insured group health plans follow many of the same nondiscrimination rules that have historically applied only to self-insured health plans under Code Section 105(h). These nondiscrimination rules were set to be effective for fully insured health plans for plan years beginning on or after Sept. 23, 2010. However, they have been delayed indefinitely, pending the issuance of regulations from the Internal Revenue Service (IRS).
Once the ACA’s nondiscrimination rules become effective for fully insured group health plans, if an insured group health plan is discriminatory, the plan will be subject to an excise tax of $100 per day per individual discriminated against.
Because fully insured health plans are not subject to the Section 105(h) nondiscrimination rules, employers generally have more flexibility to treat employees differently under their fully insured group health plans. For example, some employers only make health plan coverage available to management employees or make coverage available to all employees, but provide better benefits (or charge lower premiums) to management employees.
| Although the Section 105(h) rules do not apply to an employer’s fully insured group health plan, the Section 125 nondiscrimination rules will apply if the health plan is offered through a cafeteria plan. If a Section 125 plan is discriminatory, highly compensated employees’ health plan contributions will be taxable. To avoid this issue, highly compensated employees may want to make their premium contributions on an after-tax basis (outside of the Section 125 plan) or the coverage may be 100 percent employer-paid. |
Section 125 Plans
A Section 125 plan, or a cafeteria plan, allows employees to reduce their compensation in order to pay for certain employee benefits, such as health plan coverage, on a pre-tax basis. To receive this tax advantage, the cafeteria plan must generally pass certain tests that are designed to ensure that the plan does not discriminate in favor of highly compensated employees. If a Section 125 plan fails to pass nondiscrimination testing, highly compensated employees lose the tax benefits of participating in the plan (that is, they must include the benefits or compensation in their income).
Under the Section 125 rules, a highly compensated employee generally means any individual who is:
- An officer;
- A shareholder owning more than 5 percent of the voting power or value of all classes of stock of the employer;
- Highly compensated; or
- A spouse or dependent of a person described above.
An employee is considered “highly compensated” if he or she had compensation in excess of a specified dollar threshold for the preceding plan year, and, if elected by the employer, was also in the “top-paid group” of employees (that is, the top 20 percent). For 2017 and 2018 plan year testing, the dollar threshold is $120,000.
In general, a Section 125 plan must satisfy the following three nondiscrimination tests:
1 |
Eligibility Test | This test looks at whether a sufficient number of non-highly compensated employees are eligible to participate in the cafeteria plan. If too many non-highly compensated employees are ineligible to participate, the plan will fail this discrimination test. |
2 |
Benefits and Contributions Test | This test is designed to make sure that a plan’s contributions and benefits are available on a nondiscriminatory basis and that highly compensated employees do not select more nontaxable benefits than non-highly compensated employees select. |
3 |
Key Employee Concentration Test | This test looks at whether key employees impermissibly utilize the plan’s benefits more than non-key employees. Under this text, key employees must not receive more than 25 percent of the aggregate nontaxable benefits provided to all employees. |
Certain exceptions and safe harbors apply to the cafeteria plan nondiscrimination tests. Because these tests are so complex, employers should work with their benefit advisors or legal counsel when performing cafeteria plan nondiscrimination testing.
Self-Insured Health Plans
Self-insured health plans are subject to nondiscrimination requirements under Code Section 105(h). A self-insured health plan is an accident or health plan that reimburses medical care expenses and does not provide this reimbursement through an insurance policy. It includes self-insured group medical plans, as well as most health flexible spending accounts (health FSAs) and health reimbursement arrangements (HRAs).
Under Section 105(h), a self-insured health plan cannot discriminate in favor of highly compensated employees with respect to eligibility or benefits. If a self-insured health plan is discriminatory, highly compensated employees will be taxed on their “excess reimbursements.”
For purposes of Section 105(h) testing, a highly compensated employee means an individual who is:
- One of the five highest-paid officers;
- A shareholder who owns more than 10 percent in value of the stock of the employer; or
- Among the highest-paid 25 percent of all employees.
The eligibility test looks at whether a sufficient number of non-highly compensated employees benefit under a self-insured health plan. Section 105(h) provides three different ways for a self-insured health plan to pass the eligibility test.
1 |
70 Percent Test | The plan benefits 70 percent or more of all non-excludable employees. |
2 |
70 Percent/80 Percent Test | The plan benefits 80 percent or more of all non-excludable employees who are eligible to benefit under the plan, if 70 percent or more of all non-excludable employees are eligible to benefit under the plan. |
3 |
Nondiscriminatory Classification Test | The plan benefits a classification of employees that does not discriminate in favor of highly compensated employees. A plan satisfies this test if it has:
|
The benefits test analyzes whether the plan provides highly compensated employees with better benefits, either in terms of how the plan is designed or how it operates. A health plan does not satisfy Section 105(h) nondiscrimination testing unless all the benefits provided to participants who are highly compensated employees are provided for all other participants. In addition, all the benefits available for the dependents of highly compensated employees must be available on the same basis for the dependents of all other employees who are participating in the plan.
Because Section 105(h) testing is complex, employers with self-insured plans should work with their benefit advisors when performing this nondiscrimination testing. There are some permitted ways to structure health plan benefits in a way that favors highly compensated employees (for example, a separate fully insured group health plan for management employees offered outside of a cafeteria plan), but due to the complicated nature of the rules, employers may want to consult with legal counsel before implementing one of these designs.
Contact The Safegard Group to get assistance on your health plan designs.
23 Comments
What about an S Corp with a Section 125 plan for health insurance only. The company subsidizes only the cost of single coverage. All full time employees are offered family coverage with their pre-tax contributions covering the full incremental cost of family coverage over single coverage.
If several rank and file employees choose single coverage but two 2% shareholders are the only employees to select family coverage will the company have a discrimination problem? Will the shareholders get a self employed health insurance deduction? Should the full amount of their insurance be included in taxable wages and be reported in box 14 on their W-2?
What is the best way for an S Corp to structure their health insurance offerings?
Thanks for the question! 2% or more shareholders are ineligible to participate in a Section 125, therefore premium must be deducted post-tax from their earnings. Click here to view a document that addresses your questions in more detail and to use for future reference. The way your plan structured is fine and pretty common, you just need to have the payroll settings changed to post-tax for the 2% or more shareholders. Let us know if you/they have additional questions!
Maybe I will get an answer … I have been working at my job for going on a year. I had to seek out new team members as my current team members were relocating. With that being said I was offered a salary when I was hired. The people I sent for an interview were offered either $2000 more a year than my salary… or they could take the same salary I am paid and get benifits that will kick – in when they reach 3 months. Should I ask if I’m eligible for the benifits and I was just over looked. I know talking about pay rate is taboo but when it comes to benifits I feel I should be extent ed the same opportunity as we are the same class of employees all around.
I have a question. We have a cafeteria plan where employees must pay 30% of the coverage. What happens if the CEO says pay the 30% coverage for a couple employees because he promised them 100% coverage. But our plan is set up for all employees pay 30%? Do I tax the 30% that the company pays? Or don’t do anything?
You can’t tax that portion of premium since you aren’t deducting it from their paycheck. You also could have potential discrimination issues under their section 125 plan if the people you are paying for are considered highly compensated individuals or if the plan is self-funded. Below is a link to a document that outlines what is considered an HCI and if they are compliant. Feel free to give us a call if you have any other questions!
159684 Health Plan Rules – Treating Employees Differently 11 27 18 (PDF)
My employer has paid the total health premiums for one person and his family for years now and he will not offer group insurance to any of the other employees or pay any of their health premiums. He pays the monthly premium direct to the employee then the employee pays his insurance. My employer also pays life insurance premiums for a select group of employees and refuses to pay for all. Is this legal?
Thank you for commenting!
We’d advise you to contact a lawyer for questions on the legality of a specific situation such as this. I’m sorry we can’t be more helpful!
Thank you!
I’ve got one for you:
A company with common ownership and common control (five companies treated as a single employer) has a self-insured plan that meets all compliance testing, then acquires another company with a fully insured plan (and less than 15 employees) located in a state that has no coverage, what are the employers’ obligations in terms of offering the two heath plans to all employees across the board?
The fully insured plan has a geographic limitation for eligibility in the plan documents.
The self insured plan has no network coverage in the state for the new employer.
Can the employer use location as a basis to offer coverage to one plan and not the other?
Assume the employer pays 100% of employee only premium and the employees pay the difference for family coverage through pre-tax deductions.
If the company operates with a separate Tax ID #, the way I understand it is that they can keep their existing plan until the next renewal. Since the group is now part of a larger group, if it was in the “small group”, under 50 market prior to being acquired, they currently fall into the age-banded rates and would need to be reconsidered as a “large group”, over 50 employees at the next renewal, however they can still remain with the other carrier and not on the self-funded plan. They are also now subject to ACA guidelines and will need to make sure the plan is “affordable” under those guidelines or risk being subject to penalties. With self-funded plans, typically a wrap-around network can be added for the employees located in that area.
Does the same rules apply to groups under 50 as well as groups over 50 or do they differ?
This is an ERISA rule and not an Affordable Care Act (ACA) rule. This applies universally to all group sizes who allow pre-tax contributions to their medical plan. ACA still hasn’t offered official guidance on treating certain classes of employees differently, however Self-funded plans and Section 125’s fall under Federal rules which are governed by ERISA and not the state.
I’ve seen self-funded employers choose to waive the waiting periods on an ad hoc basis for certain employees. How does this impact any non-discrimination testing and what issues could the plan run into by making these exceptions? How much of this is theoretical impact versus actual enforcement?
Sorry for the delay in answering your question!
Below is a link to an article that discusses treating employees differently. Since self-funded plans are governed by ERISA they have to abide by stricter standards than fully insured plans. The final guidance still hasn’t been issued for fully insured but is more clear for self-funded companies. The main concern is treating highly compensated individuals more favorably than standard employees. Pages 1 and 2 of the article discuss self-funded plans. Let me know if there are additional questions and we can dig further!
Health_Plan_Rules-Treating_Employees_Differently-03.13.19.pdf
Hello, our small business (approx 5 full time employees and 6 part time) would like to offer health insurance plans based on job qualifications. Based on the attachment on compliance it seems we will be in compliance, but I am not familiar with the technicalities of cafeteria plans and other details. We would prefer to offer our one salaried manager a gold plan, 75% employer-paid, our other full time employees a silver plan, 50% employer- paid and the part -time employees no plan. Our salaried manager is well under the quoted 120,000 threshold, but receives a salary that is 25% higher than the average pay of the next highest paid employee. Can we offer these different levels to full time employees and exclude part time employees from the health plans?
Due to your company size (under 50 full time equivalent employees), you can exclude anyone who works under 40 hours per week for the offer of coverage. You have to be careful with regards to limiting plan options for certain employees. If you remain fully insured (insurance company holds all claim payment risk), discrimination rules were never finalized so you can technically offer different plans even if the manager is a highly compensated individual (HCI). If you move to a level-funded (risk sharing between your company and the insurance company), then that type of plan falls under ERISA and the guidelines become more strict but you did say this person doesn’t fall under the classification of an HCI so you wouldn’t be at risk from that perspective.
Regardless of the insurance rules, you still always run the risk of someone claiming you are being discriminatory. A recommendation would be to make an offer of coverage to all employees and set the Silver plan as your base plan and the Gold plan a buy-up plan where the employees have to pay an increased premium if they want to have that plan. This way you are making the same offer of coverage to all employees. Then what some employers do, is gross up the salary of the person you would like to contribute a higher amount of premium towards their plan and keep the payroll deductions consistent for all members. You do have to be careful how you communicate the salary increase too, but it is a workaround to your issue. Linked below is an article regarding treating employees differently for your reference.
Health_Plan_Rules-Treating_Employees_Differently-03.13.19.pdf
Can an ALE cover the full cost of employee only coverage (employee still pay the additional premium for family coverage) for employees that reach 5 years seniority but require employees with less than 5 years seniority to pay employee only premium without a legal issue?
Well, like everything with health insurance, yes and no. If you are fully insured (insurance company holds all claim payment risk), discrimination rules were never finalized so you can technically not get into trouble under the ACA for offering different lengths of service premium payments. However, with separating it by “seniority” you run the risk of the employees in the 5+ class having too many highly compensated individual’s (HCI) which would lead to failing discrimination testing under your section 125 rules. If you are in a level-funded (risk sharing between your company and the insurance company) or self-funded plan, then those types of plan falls under ERISA and the guidelines become more strict so you have to be very careful to not unfairly compensate an employee classified as an HCI. In the article linked below, “Treating Employees Differently”, at the bottom of page (3) explains some of this.
Health Plan Rules-Treating Employees Differently.pdf
Our company is a C-Corp. We have a Section 125 Cafeteria Plan. The owners (who are employees) do not have their share of premiums deducted from their check. Can we add their portion of the premiums to their W-2 at year end?
Normally, I think such persons would claim a deduction when they file their income taxes. Here is what I was able to find, below. My understanding is that a C-Corp and LLC are treated the same in this regard, so that’s why I included the first reference below. You may find it necessary to seek professional tax advice.
Plan Must be Established By the Business:
If you’re a more-than-2% shareholder/employee in an S corporation, a partner in a partnership, or a member in a multi-member LLC, you may only deduct health insurance premiums directly on Form 1040, line 29, Self-employed health insurance deduction, IF the health insurance plan is considered to have been established by the business and not by you personally.
In determining if the business established the plan, whose name the policy is in is not taken into account (it could be in the more-than-2% shareholder/employee’s name or in the business’s name).
The following two elements are considered in determining who established the plan:
For the plan to be considered established by the business, the business must pay the premiums and include the premiums in the more-than-2% S corporation shareholder/employee’s gross wages on Form W-2. If the more-than-2% S corporation shareholder/employee puts the policy in his own name, personally pays the premiums without getting reimbursed from the business, the plan is not considered to have been established by the business. https://loopholelewy.com/loopholelewy/01-tax-basics-for-startups/s-corporations-08-deducting-health-insurance.htm
LLC and Corporation Health Insurance Deductions
“A “C” Corporation or taxable-LLC can deduct all of the premiums paid on health insurance for its owners who are employed, along with their spouses and dependents. The cost of the premiums is not taxable to the employee owner. Subject to the rules of the health insurance company, health insurance might not be provided to other employees, or might be limited to single coverage. If family health insurance coverage costs $5,000 per year, the owner might have to earn twice that amount (in pre-tax dollars) to net enough to pay the premium out of his or her personal funds (in after-tax dollars). An individual can only deduct the premiums if the total of premiums and other medical deductions does not exceed 10% of the individual’s adjusted gross income”
https://www.incnow.com/tax-tips/
Hello and thanks for your great advice. I work in a small dental office of six employees, where health insurance is offered to all full time staff. Others who participate in the plan have their policy payments withheld from their pay, without the employer contributing. My employer and I have negotiated to have her pay my entire policy rather than increase my pay to cover the cost, saving me from increased income tax and saving her from increased taxes as well. I am the lowest paid employee. Is this arrangement allowed?
Below is a link to an article that discusses treating employees differently. Since the company is fully insured, non-discrimination rules aren’t currently enforce and if they were, since you are not considered a highly compensated individual, you will not be out of compliance with that arrangement. I would however caution you regarding the administration of the benefits with regards to your insurance carriers underwriting guidelines. Most carriers require an employer to contribute at least 50% of the cost of single coverage towards the plan and they typically require employees to work a minimum number of hours, so it depends on how many hours the PT employees are working to determine if there is an issue there. If you provide the name of your health insurance carrier we are happy to research it further, however your broker should have those details readily available.
Treating Employees Differently
MICHAEL,
Can an Indian casino that self funds their insurance charge a different weekly premium for workers based on if they are enrolled members of said tribe or not enrolled.
We recommend contacting an ERISA attorney for an answer to your question, that is too specific of a situation for us to comfortably answer. Sorry!