For positions where driving is an essential duty of the job, a question relating to whether or not an applicant is licensed to drive, and/or the type of vehicle the applicant is licensed to drive, would be appropriate. The legitimate needs of the employer and the concerns of the applicant might be served by including the following statement on an application form or in a job advertisement:
This position requires the successful candidate to have a valid driver's licence. The successful candidate would have to provide proof that s/he has a valid driver's licence upon being hired.
Employers should determine which jobs within their organization involve driving as an essential duty. Applications for these positions should include a statement relating to the need for successful candidates to provide proof that they possess a valid driver's licence.
Subsection 23(3) allows for employers to ask applicants if they have a valid driver's licence during a personal interview for positions in which driving is an essential duty.
1. Duty to accommodate (section 17)
Subsection 17(2) of the Code requires an employer to accommodate the needs of a person with a disability in the performance of the essential features of a job, unless it could be demonstrated that the needs of the person cannot be accommodated short of undue hardship on the person responsible for accommodating those needs.
In some cases, an individual may be licensed to drive a vehicle with modified driving apparata, because of a particular disability. For positions that involve driving as an essential duty, an employer would have a duty to accommodate the needs of a person with a licence to drive a modified vehicle only, short of undue hardship, to enable that person to perform the essential duties of the position. Undue hardship would include consideration of any costs or health and safety factors related to the accommodation.
Example: An employer may be able to accommodate the needs of a travelling salesperson with a mobility-related disability by purchasing and installing a set of hand-controls into a company car.
In some circumstances, the nature or degree of a person's disability might be such that the employer cannot accommodate the individual without incurring undue hardship.
2. Record of Offences
Where driving is an essential duty of the job, an employer may refuse to consider an applicant who has a poor driving record even though the Code protects persons who have committed a violation under the Highway Traffic Act.
Example: A company can refuse to hire a school bus driver who has accumulated too many demerit points.
At the same time, the Code does not protect persons who were convicted for careless driving under the Criminal Code and who have not been pardoned.