Question 1: An employer is required by State or local law, regulation, or order to bargain with unionized employees over discretionary elements of the DOT alcohol and drug testing regulations (e.g., selection of DHHS-approved laboratories or MROs). May the employer defer the 1995 or 1996 implementation dates for testing employees until the collective bargaining process has produced agreement on these discretionary elements, or must the employer implement testing as required by part 382?

Guidance: The FHWA provided large employers 45 weeks and small employers 97 weeks collectively to bargain the discretionary elements of the part 382 testing program. An employer must implement alcohol and controlled substances testing in accordance with the schedule in �2.115. If observance of the collective bargaining process would make it impossible for the employer to comply with these deadlines, �2.109(a)(1) preempts the State or local bargaining requirement to the extent needed to meet the implementation date.