First Quarter 2017

Nebraska

By: Andrew Wood

Question:  Under Nebraska Law, if an employee tests positive for drugs, can the employer deny or limit benefits of his or her workers’ compensation claim?

Short Answer: Yes. In Nebraska, if the employee is injured because of being in a state of intoxication at the time of injury, neither he nor she nor his or her beneficiaries are entitled to any compensation under the Nebraska Workers’ Compensation Act. An employer may use a preliminary drug test result, taken shortly after the time of the accident, to prove intoxication if the preliminary screening procedure is confirmed by an approved scientific testing technique.  The burden of proof is on the employer to show intoxication and that the employee’s intoxication caused the accident and resulting injury.

Discussion: Under Nebraska law, Neb. Rev. St. § 48-127 – If the employee is injured due to his or her intentional act, willful negligence, or due to being in a state of intoxication, neither he nor she nor his or her beneficiaries shall receive any compensation under the Nebraska Workers’ Compensation Act.

Furthermore, according to Neb. Rev. St. § 48-1903:  Any results of any test performed on the body fluid or breath specimen of an employee, as directed by the employer, to determine the presence of drugs or alcohol shall not be used to deny any continued employment or in any disciplinary or administrative action unless the following requirements are met:

  • A positive finding of drugs by preliminary screening procedures has been subsequently confirmed by gas chromatography-mass spectrometry or other scientific testing technique which has been or may be approved by the department; and
  • A positive finding of alcohol by preliminary screening procedures is subsequently confirmed by either:
  • Gas chromatography with a flame ionization detector or other scientific testing technique which has been or may be approved by the department; or
  • A breath-testing device operated by a breath-testing-device operator. Nothing in this subdivision shall be construed to preclude an employee from immediately requesting further confirmation of any breath-testing result by a blood sample if the employee voluntarily submits to give a blood sample taken by qualified medical personnel in accordance with the rules and regulations adopted and promulgated by the department. If the confirmatory blood test results do not confirm a violation of the employer’s work rules, any disciplinary or administrative action shall be rescinded.

Except for a confirmatory breath test as provided in subdivision (2)(b) of this section, all confirmatory tests shall be performed by a clinic, hospital, or laboratory which is certified pursuant to the Federal Clinical Laboratories Improvement Act of 1967, 42 U.S.C. 263a.

In Dennis Kamarad v. DRK, Inc., No. A-13-471, 2014 WL 398560 (Neb. Ct. App. Feb. 4, 2014), the employee, a restaurant worker, fell and injured his tailbone while working. Eyewitnesses testified that he had several shots of Jägermeister with customers while working and a hospital test revealed a blood alcohol level of 0.221. The employee woke up in the hospital and returned to work the next day. The employee later filed a petition with the Nebraska Workers’ Compensation Court alleging he choked on a piece of food, which caused him to fall. Following a physician’s testimony that a blood alcohol level of 0.221 led to impairments, which caused the employees injuries, the compensation court entered an order of dismissal. The Court of Appeals affirmed the decision, finding that the physician’s testimony validated the scientific reliability of the tests and that a blood alcohol level of 0.221 would cause sensory-motor incoordination and impaired balance, which was the proximate cause of the fall and injury.

In Banks v. Midwest Padding, L.L.C., No. A-06-074, 2006 WL 2472784 (Neb. Ct. App. Aug. 29, 2006), the employee, a factory worker, suffered an injury while reaching into a regrinder. The employee openly discussed his marijuana use with his coworkers, who knew that Banks smoked marijuana on a daily basis. There was no evidence that the employee smoked marijuana on the date of the accident, but the employee told his coworker to move a marijuana pipe before they went to the hospital. Furthermore, a post-accident drug screen, administered 12 hours after the accident, revealed 183 nanograms of marijuana metabolite, above the 50 nanograms per milliliter threshold. Forensic pathologists testified and confirmed the reliability of the results of this test. On appeal, the Court of Appeals held the testimony of the employees’ co-workers and a forensic pathologist was sufficient to show that the employee was intoxicated, and the intoxication was the proximate cause of the accident and resulting injuries.

In conclusion, an employee may be denied benefits if an employer presents evidence that an employee was intoxicated and the intoxication was the proximate cause of the injuries. If an employer can establish this before the workers’ compensation court, the decision is rarely reversed on appeal.