Nebraska Drug Testing Laws for Employers

A Statute About Consequences

Neb. Rev. Stat. 48-1901 through 48-1910 states its intent as helping to treat and eliminate drug and alcohol use in the workplace while protecting employee rights, and then disclaims two things at once: nothing requires employers to test, and nothing in the sections is determinative of the cases or circumstances under which tests may be given.

Section 48-1907 narrows it further, providing that nothing in 48-1901 to 48-1906 establishes any rule, right or duty not expressly provided for in those sections. So there is no policy mandate, no notice period, no medical review officer requirement, no random-testing limit and no result-notification deadline.

What the Act does is set conditions that must be satisfied before a result can be used against an employee — and add specimen handling, chain of custody, confidentiality and anti-tampering rules on top.

One coverage point before anything else: the Act does not apply to an employer with fewer than six full-time and part-time employees at any one time, and it does reach the State, its political subdivisions and all other governmental entities.

What a Result Has to Clear

• Drug confirmation: a screening positive must be confirmed by gas chromatography-mass spectrometry or another technique approved by the Department of Health and Human Services before it may be used.
• Alcohol confirmation: by gas chromatography with a flame ionization detector, another approved technique, or a breath-testing device operated by a permitted operator.
• Laboratory certification: all confirmatory tests other than confirmatory breath tests must be performed by a clinic, hospital or laboratory certified under the federal Clinical Laboratories Improvement Act.
• 180-day refrigerated retention of every specimen producing a finding of drugs or alcohol, other than breath, in sufficient quantity for retesting.
• Written chain of custody maintained from collection until the specimen is no longer required.
• Confidentiality: results may not be released or disclosed publicly, except as required by law, to the employee on request, or to officers, agents or employees who need to know for reasons connected with their employment.

Note the definition of drug at 48-1902(6): any substance listed in the referenced controlled substance sections "or any metabolite or conjugated form thereof." Nebraska expressly contemplates metabolite testing, which removes an argument available in some other states.

The Breath-to-Blood Rule

This one deserves its own workflow step. After a breath test, an employee may immediately request confirmation by a voluntarily given blood sample taken by qualified medical personnel. If the blood result does not confirm a work-rule violation, any discipline imposed must be rescinded.

Two operational consequences. The request is immediate, so the collection site needs to know what to do at the moment it is made rather than escalating it. And the remedy is mandatory rescission, not reconsideration, so an employer that has already suspended or terminated has to unwind the action.

On the other side, refusal of a lawful directive to provide a body fluid or breath sample may be met with discipline including denial of continued employment. And providing, acquiring or using body fluids to alter a result, or tampering with a specimen during or after collection or analysis, are Class I misdemeanors and may be treated as a refusal.

Applicants Sit Outside the Act

The statute is written around employees. Section 48-1903 conditions the use of results to deny "continued employment" or to support disciplinary or administrative action, and the definition of employee turns on receiving remuneration in return for actions benefiting an employer.

On its face, nothing in the Act restricts pre-employment testing, requires a conditional offer, limits the substances screened or imposes a confirmation requirement on a withdrawn offer. Whether a Nebraska court would extend the confirmation requirement to applicants is not answered by the text, and section 48-1907's limiting language cuts against reading in duties not expressly provided. That is an interpretive question rather than a statutory one, and it is unsettled.

The practical answer for an employer of any size is simpler than the legal one: confirm every non-negative applicant specimen by GC-MS regardless. It is standard practice, it costs little, and it removes the question entirely.

Cannabis: No Protection

Nebraska provides no cannabis employment protection of any kind, and adult recreational use is not legal — possession of an ounce or less is an infraction with a fine, escalating on repeat offenses.

Medical cannabis became lawful through Initiative Law 2024, No. 437, the Nebraska Medical Cannabis Patient Protection Act. It makes qualified patient use, possession and acquisition of an allowable amount not an offense under state or local law, with the allowable amount set at up to five ounces and a qualified patient requiring a written practitioner recommendation. The Act says nothing at all about employers, hiring, discipline, drug testing or accommodation.

This is the jurisdiction most likely to change in the near term, though. The medical program is new and moving — amended in 2025 and again in 2026 — so a Nebraska policy is worth re-reading against the current text each session rather than assuming continuity.

Workers' Compensation Gives You Little

Neb. Rev. Stat. 48-127 provides that an employee injured by reason of intentional willful negligence, or by reason of being in a state of intoxication, receives no compensation. But there is no statutory testing presumption, no per se cutoff, no authorization to compel a post-accident test, and no forfeiture for refusing one — a marked contrast with North Dakota next door.

Published annotations record that the burden of proving intoxication as a defense sits with the employer. Whether a confirmed positive test, standing alone, establishes "a state of intoxication" for this purpose is a case-law question rather than a statutory one, and it is unsettled. We are not going to assume it does.

The unemployment side is more useful and more specific, with disqualification for misconduct connected with work covering the week of discharge and the fourteen weeks immediately following.

Where This Lands

Nebraska's employment base runs through agriculture, meatpacking and food processing, insurance and financial services, freight rail and trucking, healthcare, manufacturing and construction. Meatpacking and rail both carry large hourly populations and real injury exposure — which makes the 180-day retention and the breath-to-blood rescission rule the two things most likely to come up in practice.