Nebraska is one of the smaller group of states with its own standalone workplace drug and alcohol testing statute. Employers that test applicants or employees in Nebraska, or that are weighing whether to start, need to know what Neb. Rev. Stat. 48-1901 to 48-1910 actually requires, how a positive test interacts with workers compensation and unemployment claims, and where the state stands on medical cannabis now that a commission is actively licensing the program. This article covers only what the statute text and the responsible state agencies say. It is general information, not legal advice, and employers should confirm current requirements with counsel before changing a policy.
Does Nebraska have a private employer drug testing statute
Yes. Sections 48-1901 through 48-1910 of the Nebraska Revised Statutes set rules for employer administered drug and alcohol testing. The Legislature was explicit about the limits of the law: 48-1901 states that nothing in the sections requires an employer to test, and nothing in the sections decides when a test may be given. In other words, Nebraska does not mandate testing and it does not create a general permission or prohibition on testing by itself. What it does is attach conditions to how a positive result can be used once an employer chooses to test.
What has to happen before a positive result is used
Under 48-1903, a body fluid or breath test result cannot be used to deny continued employment or to support discipline unless a positive screening result is confirmed. A positive drug screen must be confirmed by gas chromatography mass spectrometry or another scientific technique approved by the state, and a positive alcohol screen must be confirmed by gas chromatography with a flame ionization detector or by a breath testing device operated by a certified operator. The statute also gives an employee who fails a breath test the right to request a further confirmatory blood test through qualified medical personnel, and if that blood test does not confirm the violation, any discipline already taken has to be rescinded. Except for the breath test pathway, all confirmatory testing has to be performed by a clinic, hospital, or laboratory certified under the federal Clinical Laboratories Improvement Act, the same CLIA certification standard used nationally for confirmation testing. This mirrors the screen versus confirm structure used in federally regulated testing, where an initial immunoassay screen is a preliminary result and only a confirmatory method can support an adverse action.
For medication related positives, the confirmation step is also where legitimate prescription use gets sorted from a true positive. A screening immunoassay flags a drug class, it does not identify the specific substance or confirm that use was unauthorized. Employers that use a medical review officer process for confirmed positives give employees a documented way to provide prescription information before a final determination, which is consistent with how 48-1903 treats confirmation as the gate before any discipline.
Chain of custody and how long specimens must be kept
48-1905 requires a written chain of custody record from the time a specimen is collected until it is no longer needed, for every specimen except breath test specimens. 48-1904 requires that any specimen testing positive for drugs or alcohol be refrigerated and preserved in a quantity sufficient for retesting for at least one hundred eighty days. Together these two sections give an employee a documented paper trail and a real window to request a retest of the same specimen if the result is disputed.
Refusing the test and tampering with a specimen
48-1910 says an employee who refuses a lawful directive to provide a specimen may be subject to discipline, including loss of continued employment. The statute also makes it unlawful to provide, acquire, or use someone else's body fluids, or to tamper with a specimen, to alter a result, and treats an employee who does so the same as an employee who refused to test, in addition to a separate Class I misdemeanor exposure under the criminal code. None of this changes the confirmation requirement in 48-1903: a refusal or a tampering finding is its own basis for discipline, it is not a substitute for confirming an actual positive result.
Workers compensation and the intoxication defense
Nebraska workers compensation law has long included an intoxication defense. Neb. Rev. Stat. 48-127 provides that an employee injured because of the employee's own willful negligence, or because the employee was in a state of intoxication, is not entitled to compensation under the Nebraska Workers' Compensation Act for that injury. Nebraska courts have held that the burden of proving intoxication as a defense sits with the employer, not the employee. The statute does not, on its own text, create an automatic presumption that a positive post accident drug test equals intoxication at the time of the injury. An employer relying on this defense generally needs evidence connecting impairment to the accident, and insurers and counsel are the right people to weigh in on how a specific test result is used in a claim.
Unemployment benefits: refusing a test or testing positive at work
Nebraska's unemployment law disqualifies an individual from benefits for the week of a discharge for misconduct connected with work, plus an additional period, under Neb. Rev. Stat. 48-628.10. That section specifically addresses being under the influence of an intoxicating beverage or a controlled substance listed in the Nebraska criminal code, without a prescription from a licensed physician, while on the worksite or while performing work for the employer. If the commissioner finds that type of misconduct, wage credits earned with that employer are cancelled, and a finding of gross, flagrant, willful, or unlawful misconduct can bring a full disqualification from benefits tied to that employment. Whether a refusal to test under an employer's written policy counts as qualifying misconduct is decided case by case by the Nebraska Department of Labor based on the facts, so employers should keep a clear written testing policy and document the refusal and the policy the employee was given.
Cannabis status in Nebraska
Nebraska does not have an adult use marijuana law. It does now have a medical cannabis program, which is a change employers need to track. Nebraska voters approved two measures in 2024: one that legalized possession of a limited amount of marijuana for qualified patients for medical purposes, and one that created the Nebraska Medical Cannabis Commission to regulate the program under the Nebraska Medical Cannabis Regulation Act. The commission, which shares its membership with the Nebraska Liquor Control Commission plus two additional appointed members, is actively processing licensing matters and is working through formal rulemaking on program regulations, according to the commission's own site. Dispensing to patients was not yet fully operating as of this writing.
Our research did not find language in the ballot measures or the commission's published materials that requires a private employer to accommodate marijuana use or a positive test result tied to a medical cannabis card, and it did not find a change to the at will employment default for drug related discipline. Employers generally may be able to maintain a drug free workplace policy and a zero tolerance rule for safety sensitive roles, but this area is new and still being built out through rulemaking, so policies should be reviewed with counsel against the current version of the regulations on the commission's site rather than assumed from this article.
Public employers and drug free workplace programs
Sections 48-1901 to 48-1910 apply to employer testing generally and do not carve out a separate standard for public employers. Public sector employers also operate under constitutional search and seizure limits that do not apply to private employers in the same way, so a government employer's testing policy should be reviewed by counsel with that additional layer in mind. We did not find a Nebraska statute establishing a statewide drug free workplace premium discount program comparable to programs some other states run through their workers compensation agencies. Workers compensation premium credits in Nebraska are filed at the carrier level, so an employer that wants to know whether a discount is available for a documented testing program should check with its own carrier or the Nebraska Department of Insurance.
DOT and federally regulated positions
None of this changes anything for safety sensitive transportation employees. Employers with drivers, pilots, or other employees in positions covered by United States Department of Transportation testing rules must follow 49 CFR Part 40 for those positions regardless of state law, including the use of a medical review officer to review every confirmed positive laboratory result before it is reported. State medical cannabis status does not change a DOT required negative result standard for marijuana.
Nebraska testing rules at a glance
| Topic | What Nebraska law says | Primary source |
|---|---|---|
| General duty to test | Not required or prohibited by statute; employer choice | 48-1901 |
| Before discipline on a positive | Screen must be confirmed by GC-MS or an approved method; alcohol by GC-FID or certified breath device | 48-1903 |
| Confirmation lab standard | CLIA certified clinic, hospital, or laboratory (except certified breath testing) | 48-1903 |
| Chain of custody | Written record required from collection until no longer needed | 48-1905 |
| Specimen retention | At least 180 days, refrigerated, in sufficient quantity to retest | 48-1904 |
| Refusal to test | May be disciplined, including loss of continued employment | 48-1910 |
| Workers comp | Intoxication at time of injury can bar compensation; employer bears the burden of proof | 48-127 |
| Unemployment | Discharge for work related misconduct, including unauthorized substance use on site, can disqualify or cancel wage credits | 48-628.10 |
| Cannabis | No adult use law; medical program approved by voters in 2024 and still in active rulemaking | mcc.nebraska.gov |
Practical steps for employers
- Put the testing policy in writing, including what counts as a refusal, so a discharge decision and any unemployment claim rest on a documented policy rather than a verbal rule.
- Never act on a screening result alone. Route every non negative screen through confirmation testing at a CLIA certified lab and, where used, a medical review officer who can review prescription documentation before a final call is made.
- Keep the chain of custody record and preserve positive specimens for the full 180 day window required by 48-1904, in case an employee requests a retest.
- Limit disclosure of results to the people in the organization who need them for employment reasons, consistent with the limited disclosure structure the statute contemplates.
- Review any policy that touches medical cannabis with counsel as the Medical Cannabis Commission's rulemaking develops, rather than relying on how other states have handled their own medical marijuana employment questions.
- For safety sensitive transportation roles, keep the DOT testing program and the non DOT policy clearly separate, since 49 CFR Part 40 procedures control those positions regardless of state cannabis status.
Frequently asked questions
Does Nebraska require private employers to drug test?
No. Neb. Rev. Stat. 48-1901 says the sections do not require employers to test and do not determine when testing may be given. Testing by a private employer in Nebraska is generally a matter of employer policy.
Can an employer discipline an employee based on a screening test alone?
Under 48-1903, a positive screening result cannot be used to support discipline or denial of continued employment unless it is confirmed by an approved laboratory method, such as gas chromatography mass spectrometry for drugs, performed at a CLIA certified lab, or an approved alcohol confirmation method.
How long does a Nebraska employer have to keep a positive specimen?
At least 180 days, refrigerated and in a quantity sufficient for retesting, under 48-1904, except for breath test specimens.
Does a positive drug test automatically block a Nebraska workers compensation claim?
Not automatically. 48-127 allows compensation to be denied where the injury resulted from the employee's intoxication, but Nebraska courts have placed the burden of proving that defense on the employer.
Is medical marijuana legal in Nebraska?
Yes, within limits. Voters approved a medical cannabis measure in 2024, and the Nebraska Medical Cannabis Commission regulates the program and is still finalizing licensing rules. There is no adult use marijuana law in Nebraska.
Do DOT drug testing rules change because of Nebraska's medical cannabis program?
No. Safety sensitive transportation employees remain subject to 49 CFR Part 40 and a confirmed marijuana positive is reportable under that federal rule regardless of state medical cannabis status.
Related reading: Workers Comp Drug Testing Premium Discounts: State Programs Explained and Marijuana Legalization and Workplace Drug Testing: What Employers Can Still Do. For CLIA certified lab confirmation and cup, dip card, and oral fluid supplies that support a documented screen and confirm process, see American Screening Corporation's drug test cup collection.
This article is general information about Nebraska law as of the date of publication, not legal advice. Laws, agency regulations, and interpretations change, and this is not a substitute for advice from a licensed attorney familiar with your specific situation.
