From the Hotline: HSAs and Nondiscrimination Rules
Question: Are employer contributions for health savings accounts (HSAs) subject to nondiscrimination rules under § 125?
Answer: The matching contribution structure will depend on whether or not the HSA is offered under a cafeteria plan. Contributions to the HSA may be made pretax under a § 125 cafeteria plan. Individual contributions are deducted pretax via payroll deduction. The employee, the employer, or both may make contributions to the HSA account. The nondiscrimination rules applicable to a cafeteria plan are applicable to HSA contributions made under a cafeteria plan. This includes both employer and employee contributions.
While we are able to offer general guidance on this topic, we do recommend working with your tax advisor or cafeteria plan vendor for allow ability concerning contributions to an HSA.