Can an employer force cafeteria plan participation?

[Guest Jennifer Wagner]

My husband recently signed up for 3 AFLAC supplemental insurance policies. At the time of signing up, he was given 24 hours in which to view a brochure and then decide. He was told at the time that if he signed up and then did not want it, he would have 30 days in which to cancel. We received the policies and quickly cancelled them. My husband contacted his payroll department and informed then to quit withholding the deductions. He was informed at that time that these were Section 125 benefits and he could not cancel. We later received a letter from AFLAC saying the same thing. My husband at no time was informed this would be a Section 125 benefit nor did he sign any form saying he wanted to participate. He fully believe he had the 30 day "free look" period on the policies. My question is, can an employer do this? Can an employer make an employee participate in a cafeteria plan without the employee's consent? Can he get out of this since he never consented to participate in the plan?

[IRC401]

Check whatever form your husband signed. Is there anything on the form indicating that he was making an election under a 125 (or cafeteria)plan ? Did he receive a summary plan description informing him that the AFLAC plan was part of the 125 plan? If your husband didn't make an affirmative election to have his wages reduced, he should be able to get out of the election. {Note: In some plans election automatically carry over from year to year unless the participant cancels).