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Federal Workplace Law

Guide to the Rights of Breastfeeding Employees in Nebraska

Download a PDF version of this guide.

Purpose: This guide was developed to provide an overview of the laws that protect the rights of breastfeeding employees in Nebraska to express breast milk during the workday. The factors that are addressed and the level of protection provided vary widely from one law to another. The chart below details the Nebraska and federal laws that impact breastfeeding employees, and the protections those laws provide for each listed component. Components that are not addressed by the law are shaded in gray.

How to Use This Guide: To identify your rights as a breastfeeding employee or obligations as an employer, you must first determine which of the laws apply to you. Then compare each part of the applicable laws. If an employee is covered by more than one law, and those laws address the same component, the employee is entitled to the strongest protection available. If an employer does not provide the required accommodations, a complaint can be filed with the regulatory agency. The agency responsible for enforcement of each law and information on how to file a complaint is included in the chart.

The template was developed to address every component considered in existing state and federal workplace lactation accommodation laws. Some components may not apply to your state.

Where to Go for Help: Many breastfeeding coalitions provide support for employees and employers. See the Nebraska Breastfeeding Coalition website or visit the U.S. Breastfeeding Committee Coalitions Directory for a list of all breastfeeding coalitions.

Important Note: The information provided in this guide is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Check with a lawyer or the regulatory agency if you believe your rights have been violated. 

Nebraska Law

Nebraska Fair Employment Practice Act:

Discrimination in employment on the basis of race, color, national origin, religion, sex (including pregnancy), disability, marital status is prohibited in Nebraska. In general, covered entities include most private and non-profit employers with 15 or more employees under FEPA. Also covered are State and local government subdivisions of any size, along with employment agencies and labor organizations.
Unlawful employment practices can include discrimination in the areas of:

  • hiring and promotion (such as classification, recruitment, selection);
  • compensation (pay and benefits);
  • discipline (termination, warnings);
  • and other terms, conditions and privileges of employment (such as training and development, relationships and associations; accommodation of disabilities, religious beliefs, or pregnancy and pregnancy related conditions; and freedom from workplace harassment.

[Complete law text is included below the chart]

Resources:

    Federal Laws

    Section 7(r) of the Fair Labor Standards Act – Break Time for Nursing Mothers Provision:
    (r)(1) An employer shall provide—
    A. a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
    B. a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
    (2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
    (3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
    (4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

    Resources:

    Title VII of the Civil Rights Act: The Pregnancy Discrimination Act, passed in 1978, amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy, childbirth, and related medical conditions. In 2013, the United States Court of Appeals for the Fifth Circuit held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act.

    Title VII states:
    (a) Employer practices
    It shall be an unlawful employment practice for an employer -
    (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
    (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

    (k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

    Resources:

    • U.S. Equal Employment Opportunity Commission:
      • The Pregnancy Discrimination Act of 1978: statutory language of amendment to Title VII of the Civil Rights Act.
      • Pregnancy Discrimination: webpage detailing prohibited treatment of employees impacted by pregnancy, childbirth, or related medical conditions.
      • Enforcement Guidance: Pregnancy Discrimination and Related Issues: guidance regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act as they apply to pregnant workers. The Enforcement Guidance states that there are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination. An employee must have the same freedom to address lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.  

     

    State: Nebraska Fair Employment Practice Act

    Federal: Break Time for Nursing Mothers Law

    Federal: Title VII of the Civil Rights Act

    Eligible Employees

    Employees of private and non-profit employers with 15 or more employees, state and local government subdivisions of any size, employment agencies and labor organizations. Nursing mothers who are employees covered by the Fair Labor Standards Act (FLSA) and not exempt from FLSA overtime pay requirements. Important note: if an employer is not covered by the FLSA, its employees may still be covered if the employee's own duties meet certain interstate commerce requirements. Title VII protects employees of private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs. Title VII also applies to employees in the federal sector.

    Are Employers Required to Have a Policy on Breastfeeding Employees?

     

    No policy is required under Title VII. However, if an employer allows employees to take breaks, change their schedules, or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances. Or, if an employer freely permits employees to use break time for personal reasons, it would violate Title VII to deny break time for expressing breast milk.

    Frequency of Milk Expression Breaks

    Reasonable.

    As frequently as needed by the nursing mother. The frequency of breaks needed to express breast milk will likely vary.

    Length of Time for Milk Expression Breaks

    Reasonable (while there is no time stated in the statute, any accommodation is considered based on what is reasonable).

    Reasonable. The duration of each break will likely vary.

    Duration of Milk Expression Breaks

    No limit.

    1 year after the child's birth.

    Space Requirements

    Appropriate facilities for breast-feeding or expressing breast milk.

    A place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is the best way to meet their obligations under the law.

    Pay Requirement

    Unpaid, unless concurrent with paid breaks.

    Unpaid, unless concurrent with paid breaks. If a nursing employee is not completely relieved from duty during a break to express breast milk, the time must be compensated as work time.

    Are Employers Required to Notify Employees of Their Rights?

    Every employer, employment agency and labor organization subject to the provisions of the Nebraska Fair Employment Practice Act shall post in a conspicuous place or places on his or its premises a notice to be prepared or approved by the commission which shall set forth excerpts of the act and such other relevant information which the commission deems necessary to explain the act.

    Employers are required to post the "EEO is the Law" English poster.
    Note: This notice does not specifically address the rights of breastfeeding employees.

    Requirements for Employees

     

    Exemption

    Reasonable accommodation shall not include accommodations which the covered entity can demonstrate require significant difficulty or expense thereby posing an undue hardship upon the covered entity. Factors to be considered in determining whether an accommodation would pose an undue hardship shall include:
    (a) The nature and the cost of the accommodation needed under the Nebraska Fair Employment Practice Act;
    (b) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
    (c) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of its employees, and the number, type, and location of its facilities; and
    (d) The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity

    All employers covered by the FLSA, regardless of the size of their business, are required to comply with this provision. However, employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

    Milk Storage

     

    Does Unpaid Break Time Impact Full Time Status and/or Eligibility for Health Insurance?

     

    Is Unpaid Break Time Expressly Separated from Paid Leave or Paid Time Off?

         

    Are Employers Required to Consider Providing Additional Accommodations for Breastfeeding Employees?

    Reasonable accommodation, with respect to pregnancy, childbirth, or related medical conditions, shall include acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk.

    Discrimination/Retaliation

    It shall be an unlawful employment practice for a covered entity to discriminate against an individual who is pregnant, who has given birth, or who has a related medical condition in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Discrimination shall include taking adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

    It is a violation for any person to discharge or in any other manner discriminate against an employee who files a complaint or cooperates with the investigation of a complaint.

    Firing a woman or taking other adverse employment action against her because she is lactating or expressing milk is unlawful sex discrimination. An employer may not discriminate against an employee because of her breastfeeding schedule. Women breastfeeding and lactating must be able to take breaks as other employees who take breaks for other medical or personal reasons. Employers are prohibited from firing, demoting, harassing or otherwise retaliating against an employee because she has complained of discrimination or participated in an employment discrimination proceeding.

    Protection from Harassment

    Harass because of sex shall include making unwelcome sexual advances, requesting sexual favors, and engaging in other verbal or physical conduct of a sexual nature if
    (a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
    (b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
    (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

    Employers are required to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions, including breastfeeding.

    Agency Responsible for Enforcement

    Nebraska Equal Opportunity Commission.

    U.S. Department of Labor, Wage and Hour Division.

    U.S. Equal Employment Opportunity Commission.

    How to File a Complaint

    Any person charging on her or his own behalf to have been personally aggrieved by an unlawful employment practice or practices may make, sign and file with the Commission a charge in writing under the oath or affirmation of the Complainant. The charge may be filed on forms provided by the Commission, blank copies of which will be supplied by the Commission upon request and will be available at the Commission offices.  The original charge shall be duly affirmed within three hundred (300) days of the alleged discriminatory act if it was not notarized in its original form. A charge shall contain the following:
    - The full name, address and telephone number, if any, of the person making the charge.
    - The full name, address and telephone number, if known, of the Respondent.
    - A plain and concise statement of the facts alleged to constitute an unlawful employment practice or practices.
    - The date and place in the State of Nebraska where the alleged unlawful employment practice or practices was committed.
    - A statement as to any other action instituted by or on behalf of the Complainant in any other forum, or under the grievance or arbitration provisions of a collective bargaining agreement, based on the same facts as alleged in the charge, together with a statement as to the status or disposition of such other action.

    The charge may be filed by personal delivery, mail or facsimile, addressed to any office of the Commission.   

    The Nebraska Equal Employment Opportunity commission recommends contacting the Agency to speak to an intake investigator to determine standing. If there is standing then the person will be set up with an appointment to conduct an intake interview in order to draft a charge with the proper issues, basis, and laws. The Agency can be reached via phone or in person at the Lincoln, Omaha or Scottsbluff offices, or via e-mail contact through the Agency's website.

    File a complaint by calling the WHD toll-free at 1-800-487-9243 or visiting www.dol.gov/whd. You will then be directed to your nearest WHD office for assistance.

    You may file a charge of employment discrimination at the EEOC office closest to where you live, or at any one of the EEOC’s 53 field offices. You may call 1-800-669-4000 or visit the EEOC website for more information on filing a charge and filing deadlines.   Important Note: Federal sector employees have a different complaint process.

    Is the Agency Required to Monitor and Compile Enforcement Reports?

    The commission shall report, not less than once every two years, to the Clerk of the Legislature and the Governor, on the hearings it has conducted and the decisions it has rendered, the other work performed by it to carry out the purposes of the act, and to make recommendations for such further legislation concerning abuses and discrimination because of race, color, religion, sex, disability, marital status, or national origin, as may be desirable. The report shall also include the number of complaints filed under the act alleging a violation of subdivision (2) of section 48-1107.01 and the resolution of such complaints. Each member of the Legislature shall receive a copy of the report required by this subdivision by making a request for it to the chairperson of the commission.

    Yes.

    Sanctions for Non-Compliance

    An employee whose rights are denied can file a complaint with the Wage and Hour Division, which can go to court to obtain an order requiring the employer to comply. In addition, any employee who is “discharged or in any other manner discriminated against” because, for instance, he or she has filed a complaint or cooperated in an investigation, may file a retaliation complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages.

    Remedies may include reinstatement, compensatory damages, punitive damages, back pay for lost wages where someone has been terminated, and requiring an employer to take certain actions to prevent future discrimination.

    Do Employees Have Private Action Rights?

    Yes. The deadline for filing an action directly in the district court is ninety days after the complainant receives notice of the last action the commission will take on the complaint or charge. When entering the last action on the complaint or charge, the commission shall issue written notice of such ninety-day deadline to the complainant by certified mail, return receipt requested. The last action on the complaint or charge includes the issuance of the final order after hearing, the determination of reasonable cause or no reasonable cause, and any other administrative action which ends the commission's involvement with the complaint or charge.

    Yes.

    Yes, but employees are first required to file a charge with the EEOC

    Worksite Designation Program

    Nebraska Breastfeeding Friendly Award.
    Note: designation is not required under Nebraska law.

    Additional Resources

    U.S. Department of Labor Women’s Bureau: Employment Protections For Workers Who Are Pregnant or Nursing

    Nebraska Breastfeeding Coalition: Business of Breastfeeding

    Really? Really.

    Nebraska Safety Council: Lactation Support at the Worksite

    Office on Women’s Health:
    Supporting Nursing Moms at Work: Employer Solutions
    - Business Case for Breastfeeding 

    U.S. Breastfeeding Committee: 
    - Resource Guide for Breastfeeding Employees and their Employers 
    - Online Guide: What You Need to Know About the “Break Time for Nursing Mothers” Law 

    Especially see Online Guide sections: 
    - How should you store your breast milk?
    - What are the space requirements?

    Wage and Hour Division: Family and Medical Leave Act

    Center for WorkLife Law:
    Pregnant @ Work
    Guide for doctors on writing work notes for nursing mothers

    Equal Employment Opportunity Commission:

    - Guidance: Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues

    - Press release: Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

    National Women’s Law Center: Fact Sheet: The Pregnancy Discrimination Act and the Amended Americans with Disabilities Act: Working Together to Protect Pregnant Workers

    American Civil Liberties Union: Federal Law and Pregnant, Post-Partum and Breastfeeding Workers

    A Better Balance: Babygate

    This document was developed in partnership with the Nebraska Breastfeeding Coalition. Nebraska Fair Employment Practice Act content was reviewed by the Nebraska Equal Opportunity Commission in October 2016. Title VII of the Civil Rights Act content is based on Equal Employment Opportunity Commission publications. Break Time for Nursing Mothers law content was reviewed by the U.S. Department of Labor, Wage and Hour Division in May 2016.

    Full text of Nebraska Fair Employment Practice Act:

    48-1101. Purpose.
    It is the policy of this state to foster the employment of all employable persons in the state on the basis of merit regardless of their race, color, religion, sex, disability, or national origin and to safeguard their right to obtain and hold employment without discrimination because of their race, color, religion, sex, disability, or national origin. Denying equal opportunity for employment because of race, color, religion, sex, disability, or national origin is contrary to the principles of freedom and is a burden on the objectives of the public policy of this state. The policy of this state does not require any person to employ an applicant for employment because of his or her race, color, religion, sex, disability, or national origin, and the policy of this state does not require any employer, employment agency, labor organization, or joint labor-management committee to grant preferential treatment to any individual or to any group because of race, color, religion, sex, disability, or national origin.

    48-1102. Terms, defined.
    (11) Reasonable accommodation, with respect to disability, shall include making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training manuals, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Reasonable accommodation, with respect to pregnancy, childbirth, or related medical conditions, shall include acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk. Reasonable accommodation shall not include accommodations which the covered entity can demonstrate require significant difficulty or expense thereby posing an undue hardship upon the covered entity. Factors to be considered in determining whether an accommodation would pose an undue hardship shall include:
    (a) The nature and the cost of the accommodation needed under the Nebraska Fair Employment Practice Act;
    (b) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
    (c) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of its employees, and the number, type, and location of its facilities; and
    (d) The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity;
    (13) Because of sex or on the basis of sex shall include, but not be limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;
    (14) Harass because of sex shall include making unwelcome sexual advances, requesting sexual favors, and engaging in other verbal or physical conduct of a sexual nature if (a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment;
    (18) Individual who is pregnant, who has given birth, or who has a related medical condition shall mean an individual with a known limitation who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds, desires, or may be temporarily assigned to. Consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

    Section 48-1103. Exceptions to act.
    The Nebraska Fair Employment Practice Act shall not apply to:
    (1) A religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities; or
    (2) The employment of any individual (a) by his or her parent, grandparent, spouse, child, or grandchild or (b) in the domestic service of any person.

    Section 48-1104.  Unlawful employment practice for an employer. 
    It shall be an unlawful employment practice for an employer: 
    (1)  To fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin; or 
    (2)  To limit, advertise, solicit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect such individual's status as an employee, because of such individual's race, color, religion, sex, disability, marital status, or national origin.

    Section 48-1106.  Unlawful practice for labor organization. 
    It shall be an unlawful employment practice for a labor organization: 
    (1)  To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, religion, sex, disability, marital status, or national origin; 
    (2)  To limit, segregate, or classify its membership, or to classify or fail to refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect such individual's status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin; or 
    (3)  To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

    Section 48-1107.01.  Unlawful employment practice for covered entity.  
    It shall be an unlawful employment practice for a covered entity to:
    (1) Discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment; or
    (2) Discriminate against an individual who is pregnant, who has given birth, or who has a related medical condition in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

    Section 48-1107.02. Qualified individual with a disability; individual who is pregnant, who has given birth, or who has a related medical condition; discrimination, defined.
    (1) When referring to a qualified individual with a disability, discrimination shall include: 
    (a)  Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the disability of the applicant or employee; 
    (b) Participating in a contractual or other arrangement or relationship that has the effect of subjecting a qualified individual with a disability to discrimination in the application or employment process, including a relationship with an employment agency, a labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs; 
    (c)  Utilizing standards, criteria, or methods of administration (i) that have the effect of discrimination on the basis of disability or (ii) that perpetuate the discrimination against others who are subject to common administrative control; 
    (d)  Excluding or otherwise denying equal jobs or benefits to a qualified individual with a disability because of the known disability of an individual with whom the qualified individual with a disability is known to have a relationship or association; 
    (e)  Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity; 
    (f)  Denying employment opportunities to a job applicant or employee who is otherwise a qualified individual with a disability if the denial is based upon the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; 
    (g)  Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; 
    (h)  Failing to select and administer tests concerning employment in the most effective manner to ensure that, when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant except when such skills are the factors that the test purports to measure; 
    (i)  Conducting a medical examination or making inquiries of a job applicant as to whether the applicant is an individual with a disability or as to the nature or severity of the disability, except that: 
    (i)  A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions; 
    (ii)  A test to determine the illegal use of drugs shall not be considered a medical examination; and 
    (iii)  A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant and may condition an offer of employment on the results of the examination if: 
     
    (A) All entering employees are subject to such an examination regardless of disability; 
    (B) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (I)supervisors and managers may be informed regarding necessary restrictions of the work or duties of the employee and necessary accommodations, (II) first-aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment, (III) government officials investigating compliance with the Nebraska Fair Employment Practice Act shall be provided relevant information on request, and (D) information shall be made available in accordance with the Nebraska Workers' Compensation Act; and 
    (C)  The results of the examination are used only in a manner not inconsistent with the Nebraska Fair Employment Practice Act; and 
    (i)  Requiring a medical examination or making inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job related and consistent with business necessity. A test to determine the illegal use of drugs shall not be considered a medical examination. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at work site and may make inquiries into the ability of an employee to perform job-related functions if the information obtained regarding the medical condition or history of the employee is subject to the requirements in subdivision (1)(i)(iii)(B) and (C) of this section.
    2. When referring to an individual who is pregnant, who has given birth, or who has a related medical condition, discrimination shall include:
    (a) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the pregnancy, childbirth, or related medical conditions of the applicant or employee;
    (b) Participating in a contractual or other arrangement or relationship that has the effect of subjecting an individual pregnant who is pregnant, who has given birth, or who has a related medical condition to discrimination in the application or employment process, including a relationship with an employment agency, a labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs;
    (c) Utilizing standards, criteria, or methods of administration (i) that have the effect of discrimination on the basis of pregnancy, childbirth, or related medical conditions or (ii) that perpetuate the discrimination against others who are subject to common administrative control;
    (d) Not making reasonable accommodations to the known physical limitations of an individual who is pregnant, who has given birth, or who has a related medical condition and who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity;
    (e) Denying employment opportunities to a job applicant or employee who is pregnant, who has given birth, or who has a related medical condition if the denial is based on the need of such covered entity to make reasonable accommodation to the physical limitations due to the pregnancy, childbirth, or related medical conditions of the employee or applicant;
    (f) Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out a or tend to screen out an individual or a class of individuals who are pregnant, who have given birth, or who have a related medical condition unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity;
    (g) Conducting a medical examination or making inquiries of a job applicant as to whether the applicant is pregnant, has given birth, or has a related medical condition, except that:
    (i) A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions;
    (ii) A test to determine the illegal use of drugs shall not be considered a medical examination; and
    (iii) A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant and may condition an offer of employment on the results of the examination if;
    (A) All entering employees are subjected to such an examination;
    (B) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (I) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations, (II) first-aid and safety personnel may be informed, when appropriate, if the pregnancy, childbirth, or related medical conditions might require emergency treatment, (III) government officials investigating compliance with the Nebraska Fair Employment Practice Act shall be provided relevant information on request, and (IV) information shall be made available in accordance with the Nebraska Workers' Compensation Act; and
    (C) The results of the examination are used only in a manner not inconsistent with the Nebraska Fair Employment Practice Act;
    (h) Requiring a medical examination or making inquiries of an employee as to whether the employee is pregnant, has given birth, or has a related medical condition unless the examination or inquiry is shown to be job-related and consistent with business necessity. A test to determine the illegal use of drugs shall not be considered a medical examination. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at the worksite and may make inquiries into the ability of an employee to perform job-related functions if the information obtained regarding the medical condition or history of the employee is subject to the requirements in subdivisions (2)(g)(iii)(B) and (C) of this section;
    (i) Requiring an employee to take leave under any leave law or policy of the covered entity if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee; and
    (k) Taking adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

    Section 48-1111.  Different standards of compensation, conditions, or privileges of employment; lawful employment practices; effect of pregnancy and related medical conditions.  
    (1)  Except as otherwise provided in the Nebraska Fair Employment Practice Act, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, if such differences are not the result of an intention to discriminate because of race, color, religion, sex, disability, marital status, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test if such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, disability, marital status, or national origin. 
    It shall not be an unlawful employment practice for a covered entity to deny privileges of employment to an individual with a disability when the qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability: 
    (a)  Have been shown to be job-related and consistent with business necessity and such performance cannot be accomplished by reasonable accommodation, as required by the Nebraska Fair Employment Practice Act and the federal Americans with disabilities Act of 1990; or 
    (b)  Include a requirement that an individual shall not pose a direct threat, involving a significant risk to the health or safety of other individuals in the workplace, that cannot be eliminated by reasonable accommodation. 
    It shall not be an unlawful employment practice to refuse employment based on a policy of not employing both husband and wife if such policy is equally applied to both sexes. 
    (2)  Except as otherwise provided in the Nebraska Fair Employment Practice Act, women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of employee benefits, as other persons not so affected but similar in their ability or inability to work, and nothing in this section shall be interpreted to provide otherwise. 
    This section shall not require an employer to provide employee benefits for abortion except when medical complications have arisen from an abortion. 
    Nothing in this section shall preclude an employer from providing employee benefits for abortion under fringe benefit programs or otherwise affect bargaining agreements in regard to abortion.