New York state employers should review benefit plans carefully now that the state has adopted a law that lets same-sex couples wed.

Labor lawyers at Proskauer Rose L.L.P., New York, delivered that warning in a client alert on the New York Marriage Equality Act.

Gov. Andrew Cuomo, D-N.Y., signed the bill creating the act into law in June. When the act takes effect July 24, New York will become the sixth state to let same-sex couples marry.

But many employers in New York state have self-insured health plans governed by the Employee Retirement Income Security Act of 1974 (ERISA), and federal law will continue to apply to those health plans, according to Roberta Chevlowe, a senior counsel at Proskauer Rose who helped work on the alert.

The new act “does not require employers to treat same-sex spouses as ‘spouses’ for purposes of self-funded benefit plans,” the Proskauer Rose lawyers say.

The Federal Defense of Marriage Act of 1996 (DOMA) states that an individual’s spouse must be a member of the opposite sex. Under DOMA, no state is required to recognize a same-sex marriage that has taken place in another state.

But the fact that federal law governs some benefits need not keep employers from providing alternative versions of those benefits for same-sex spouses, the Proskauer Rose lawyers say.

“Employers and other plan sponsors can and have voluntarily chosen to re-create certain ‘federal’ benefits as plan or policy features,” the lawyers say.

New York employers should work with legal counsel to address any concerns about discriminatory practices that may arise when a plan is providing benefits for or imposing eligibility requirements on same-sex partners, the lawyers add.

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