Yes, there are discrimination issues if an employer imposes a 12-month waiting period only for new hires for employer contributions to a health savings account (HSA).

The comparability rules under Reg. Sec. 54.4980G-1 specify that if an employer makes contributions to any employee's HSA, the employer must make comparable contributions to the HSAs of all comparable participating employees.

Contributions are comparable if, for each month in a calendar year, the contributions are either the same amount or the same percentage of the deductible under the high deductible health plan (HDHP) for employees who are eligible individuals with the same category of coverage on the first day of that month.

Comparable participating employees are eligible individuals who are in the same category of employees and who have the same category of HDHP coverage.

Categories of employees. The exclusive categories of employees are as follows:

• Current full-time employees;
• Current part-time employees; and
• Former employees (except for former employees with HDHP coverage because of an election under a COBRA continuation provision).

Part-time employees are customarily employed for fewer than 30 hours per week, and full-time employees are customarily employed for 30 or more hours per week.

What this means, for example, is that full-time eligible employees with self-only HDHP coverage and part-time eligible employees with self-only HDHP coverage are separate categories of employees and different amounts can be contributed to the HSAs for each of these categories.

Thus, when new full-time employees become eligible for an HDHP, they become comparable participating employees eligible for any employer HSA contributions.

Note that the employer HSA contributions could be delayed for new employees if the employer also imposed a 12-month waiting period on the HDHP.