Backfilling Positions in Sick Leave Without Pay Situations

General principles regarding leave without pay (LWOP), backfilling positions and priority entitlements

As per the Treasury Board’s Directive on Leave and Special Working Arrangements (Directive), Appendix B, section 1.4, an employee on LWOP can only be replaced on an indeterminate basis if the period of leave or consecutive periods of the same type of leave exceeds one year. Periods of different types of leave cannot be combined for the calculation of the one-year period.

In these types of situations, the manager must confirm which person should receive the priority entitlement – the person on leave or the person replacing the person on leave (Public Service Commission’s Guide on Priority Entitlements).

Specific principles applicable to sick leave without pay situations (SLWOP)

One exception to the above-mentioned practice is for employees on sick leave without pay. In these situations, where managers are able to fill the position with a replacement, it is generally recommended to make use of available temporary/flexible staffing options. Managers may choose to staff the position through various options including term, acting, assignment, secondment, etc. until the employee returns. Unless it is clear that the employee will not be able to return to duty, managers are advised not to staff the position on an indeterminate basis for the initial 24 months* for which income replacement benefits are usually provided (Disability Management Handbook for Managers in the Federal Public Service).

      *As per Appendix B, section 2.2 of the

(Directive)

    , the 24 months is a reference point to ensure that a review is done to determine that the period of leave without pay corresponds to and is appropriate to the individual circumstances. The 24-month mark is a trigger to ensure that an in-depth review and assessment of the employee’s file is performed. The period of leave without pay may continue beyond the two-year mark; however, management must be satisfied that there is a reason to extend the leave without pay, i.e. the employee continues to be unable to return to work but there are reasonable prospects of returning to work in the foreseeable future.

Consultation with a Disability Management Advisor is required when considering indeterminately backfilling a SLWOP situation.  After a thorough evaluation of the situation, a manager can consider indeterminately backfilling a position, if they are in receipt of medical documentation that clearly indicates no possibility of a return to work.

If the position of an employee on SLWOP is backfilled indeterminately, the leave of absence returnee priority entitlement would not resolve the SLWOP situation; this means that management of the substantive position would remain accountable in ensuring the illness or injury situation is managed according to ESDC’s Process for Managing Long-Term Sick Leave. Moreover, if the employee is considered fit to return to work, management would be accountable to support the returnee in the return to work process.

In addition, it has been noted that a decision to indeterminately backfill the position of an employee on SLWOP may be perceived as discriminatory practice by a third party, particularly if the employee was deemed fit to work and was left with no position to return to.

Should you have any questions related to backfilling of positions in situations of sick leave, please contact your Disability Management Advisor by submitting a request to the Human Resources Service Centre. 

References