Employers, regardless of size, who provide a cafeteria plan (also known as a Section 125 plan) are required to perform nondiscrimination testing (NDT) as of the last day of their plan year. 

Definition: In general, Section 125(d)(1) defines the term “cafeteria plan” as a written plan under which— (A) all participants are employees, and (B) the participants may choose among 2 or more benefits consisting of cash and qualified benefits. 

In other words, a cafeteria plan is what permits employees to pay for qualified benefits, such as group health insurance, on a pretax basis, reducing both the employees’ and the employer’s tax liability.

However, in order for the employer (and employee) to receive the tax advantages associated with a cafeteria plan, the Internal Revenue Code (IRC) requires testing to ensure highly compensated employees (defined as $125,000 for 2019 plan year testing) and other individuals key to the business (i.e. officers, more than 5% shareholders or spouse/dependent of the highly compensated employees or these key individuals) do not receive a more favorable tax treatment (i.e. does not discriminate in favor of highly compensated employees).

Although the Section 125 rules only require an employer test “as of the last day of the plan year”, corrections are not allowed to be made retroactively after the plan year ends. Therefore, best practice is for a plan to be tested more than once, allowing an employer to possibly make adjustments to ensure the plan passes at the end of the year to preserve the tax treatment for the highly compensated and key employees. Otherwise, if a plan fails (i.e. found discriminatory) at the end of the year, the affected employees would be taxed on their total election amount.

If you haven’t ran your nondiscrimination tests, now would be a good time to engage a qualified vendor or legal counsel to perform the applicable nondiscrimination testing and possibly detect potential problems that may be resolved before the end of the plan year.

NOTE:  In addition to Section 125 NDT, the IRS Code requires other nondiscrimination testing to be done annually too. For instance, employers who sponsor a health FSA, which is considered a self-insured health plan, would be subject to both Section 125 & Section 105(h) testing, their dependent care FSA would be subject to Code Section 125 & Section 129 NDT.