Can an employer have different contribution levels or waiting periods for managers and supervisors?

Group health plans cannot discriminate in favor of highly compensated individuals as to eligibility to participate in, and the benefits provided under the plan. Highly compensated individuals are defined as: (1) one of the 5 highest paid officers; (2) a shareholder who owns more than 10% in value of the stock of the employer; or (3) among the highest paid 25% of all employees (except for employees that may excluded – employees who have not completed 3 years of service; employees who have not attained age 25; part-time or seasonal employees; employees covered by a collective bargaining agreement; employees who are non-resident aliens and who receive no earned income from the employer).

The IRS has not determined what eligibility to participate in, and benefits provided under the plan means or includes. Hence, it has not been determined whether differing employer contributions and/or waiting periods will be treated as a “benefit” that must be provided on a nondiscriminatory basis.

However, employers should be cautious that contribution levels and waiting periods could be considered a benefit provided under the plan since employer contributions is typically a benefit employers provide employees, and waiting periods dictate when an employee’s benefits become effective.  It can also be claimed that employees with shorter waiting periods are favored more with regards to eligibility to participate in the plan. These employees also have more of a benefit than employees with longer waiting periods, because their coverage becomes effective sooner, therefore they can take advantage of the plan benefits sooner.