If an employer or a prospective employer in Nebraska has asked you to take a drug test, you’ll want to know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Nebraska allows employers to require applicants and employees to take drug tests, as long as the employer follows state procedures. Employers are not required to drug test. The state’s drug testing law applies only to employers with at least six employees, whether full time or part time.
Drug Testing for Nebraska Applicants
Nebraska places no restrictions on an employer’s right to require applicants to take drug tests.
Drug Testing for Nebraska Employees
Nebraska employers may require employees to take drug tests. There are no restrictions on the circumstances in which an employer may require a drug test. An employer may fire or take other adverse action against an employee if:
- the employee tampers with a drug test sample
- the employee refuses to take a drug test, or
- the employee tests positive for drugs, and that result is confirmed in a certified clinic, hospital, or laboratory.
Legal Claims Arising From Drug Testing
Even though Nebraska law allows employers to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
- Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements. For example, a Nebraska employee who was fired on the basis of an initial positive result that was never confirmed as required by statute might have a valid legal claim.
- Disability discrimination. The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable.
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, the test result was false, and the employer knew or had reason to know of the error.