Manager's Guide to Non-Imperative Staffing

1.0 Context

The Public Service Official Languages Exclusion Approval Order (PSOLEAO) and the Public Service Official Languages Appointment Regulations (PSOLAR) allows the flexibility for managers to use non-imperative appointments to staff a bilingual position when a candidate does not meet the linguistic profile of a position. A non-imperative appointment means that the position can be staffed by a person who agrees to become bilingual through language training at government expense within a two year exemption period. While imperative appointments are expected to be the norm, through workforce planning, managers have the flexibility to offer a non-imperative appointment based on their business needs.

2.0 Objective

To assist managers within Employment and Social Development Canada (ESDC)^{Footnote 1} in staffing bilingual positions on a non-imperative basis, and to ensure that non-imperative appointments are made in accordance with the PSOLEAO and the PSOLAR.

3.0 Imperative Staffing

Imperative staffing of a bilingual position means that an applicant must meet the language requirement of the position at the time of the appointment or deployment. Managers should use imperative staffing to ensure that services of comparable quality are provided at all times to the public and to employees at all times in both official languages, in the following cases^{Footnote 2}:

• Staffing of a bilingual position for a specified period.
• Staffing of a bilingual position that requires technical or specialized language skills (code P).
• Staffing of a bilingual position for which the language profile is indispensable^{Footnote 3} for providing services to the public and/or to employees in both official languages.
• Staffing of a position at the Assistant Deputy Minister (ADM) level or equivalent (EX-4 and EX-5).
• In bilingual regions, for all EX-02 to EX-05 positions.
• In unilingual regions, for all EX-02 to EX-05 positions that include supervision of employees who occupy bilingual positions or positions with varying language requirements and who are located in a designated bilingual region for language-of-work purposes.

4.0 Non-Imperative Staffing

Non-imperative staffing could be used, for example, in the following situations:

• The potential applicant pool is very limited due to the highly specialized nature of the duties and the knowledge needed for a position where imperative staffing might unduly limit applications for the position.
• An insufficient number of applications from members of either official language community may be received, and staffing on a non-imperative basis is likely to promote participation of the under-represented linguistic community.
• During an indeterminate external appointment process^{Footnote 4}.
• Other reasons could also be acceptable. Please discuss with your HR Consultant.

Employees appointed on a non-imperative basis and who are consequently subject to the PSOLEAO must meet one of the following conditions. They must:

1. Sign an agreement to meet the language requirements of the position within two years following the date of appointment; OR
2. Be excluded from meeting the language requirements of the position as a person eligible for an immediate annuity at the time of appointment or deployment; OR
3. Be excluded from meeting the language requirements of the position based on medical grounds.

Employees currently excluded for the purpose of being eligible to immediate annuity or for medical grounds under the PSOLEAO will maintain their exclusion for the period they occupy their bilingual position even if there should be a reclassification, reorganization, a lay-off or a leave of absence.

1. A. First Condition: Statement of Agreement to Become Bilingual and Language Training

   The Statement of Agreement to Become Bilingual must be completed by any employee who is appointed on a non-imperative basis and does not meet the language requirements of the position (unless excluded for the purpose of being eligible to immediate annuity or for medical grounds).

   The Statement of Agreement must be signed by the employee and their manager before the Notice of Consideration (NOC) is published in the case of an internal advertised appointment, and before the signature of the letter of offer in the case of an external advertised appointment.

   Starting from the effective date of the appointment or the date the letter of offer is issued (the most recent of the two dates), a training plan must be established and there is two-year period for the employee to meet the language requirements of the position.

   The Human Resources Services Branch (HRSB) will send a copy of the employee's letter of offer and the signed Statement of Agreement to Become Bilingual to the College@ESDC. A representative of the College@ESDC will be in contact with the manager.

   If operationally feasible, the employee should begin language training before assuming the duties of the position or as soon as possible following the appointment or deployment. Note that language training may be full-time, part-time or a combination of both over a period determined by the linguistic evaluation^{Footnote 5}.

   The target date to meet the language requirements of the position (two years) does not change, even if the employee accepts an acting appointment, an assignment or a secondment.

   However, any period of leave of more than 60 consecutive days is not included in the calculation of the two-year exclusion period as referred to in the Statement of Agreement to Become Bilingual, nor is it included in any extension of that period.

   If the employee does not acquire the required language proficiency within the prescribed timeframe, the manager must appoint or deploy the employee to another position for which he or she meets the essential qualifications, including language requirements, and that is of a similar level and salary as the bilingual position within two months from the end of the exemption period. Please refer to section five, should an extension of the exclusion period be considered.

2. B. Second Condition: Exclusions for Persons Eligible for Immediate Annuity

   According to the PSOLEAO, it is possible, under certain conditions, to exclude persons eligible for immediate annuity from meeting the linguistic requirements of a bilingual position. The following conditions must be met:

   • In accordance with the Public Service Superannuation Act, the person is eligible for immediate annuity within two years after a non-imperative appointment to a bilingual position.
   • The person submits an irrevocable resignation to take effect no later than the end-date of the two-year exclusion period. The resignation letter must be accepted by the manager^{Footnote 6} and a copy must be placed on the staffing file:
     • Prior to appointing an employee to a bilingual position, if it is a matter of an external appointment process; OR
     • Prior to publishing the name of the person considered for appointment (1st notification), if it is a matter of an internal advertised process; OR
     • Prior to deploying an employee to a bilingual position.

3. C. Third Condition: Exclusions on Medical Grounds

   Under the PSOLEAO, the PSC may exclude a person with a long-term or recurring physical, mental or learning impairment from having to meet the language requirements of his or her position. However, the organization and the employee must have made every effort for the employee to attain the second official language proficiency required for the position before seeking an exclusion.

   The Department must demonstrate to the PSC that the employee is unable to achieve the required second official language proficiency through language training. An exclusion on medical grounds is valid only for the position for which it was approved.

   A request for an exclusion on medical grounds is submitted only once all reasonable accommodations related to learning and evaluations have proven unsuccessful. Such accommodations must be made in accordance with the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service.

   The Department is responsible for covering all of the costs associated with the medical assessments required to submit a request for exclusion on medical grounds. The PSC has signed agreements with Health Canada and the Canadian Hearing Society (CHS) in order to assess requests for exclusion on medical grounds and to obtain the expertise of these organizations in assessing an employee's aptitude to learn their second official language in cases where the employee is not able to meet the linguistic requirements of the non imperative position to which they were appointed or for which they are being considered.

5.0 Extensions to the Exclusion Period

An extension of the exclusion period can only be considered in one of the following circumstances ^{Footnote 7}:

• exceptional operational requirements have occurred which were not foreseeable at the time of the appointment;
• exceptional personal circumstances have occurred which were not foreseeable at the time of the appointment;
• a physical, mental or learning impairment that hinders the learning of the other official language at the required level of proficiency; or
• the inability to obtain language training at the organization's expense (for example, in the case of an employee located in a remote area).

It is recommended to extend the exclusion for period one year at a time. However, the exclusion period may be extended more than once and for more than one reason, provided that the total duration of all extensions does not exceed two years.

6.0 Transfer of Language Obligations

Managers should be aware of employees' previous language obligations prior to considering a deployment or appointment. If during the two-year period referred to in a person's agreement to become bilingual, the person enters into a new agreement to become bilingual in order to be appointed or deployed on a non-imperative basis to another bilingual position requiring the same or a lower level of official language proficiency^{Footnote 8} the period of agreement resulting from the previous non-imperative appointment applies, or is transferred, to the new appointment^{Footnote 9}.

However, a new agreement period applies if the person enters into a new agreement to become bilingual in order to be appointed or deployed on a non-imperative basis to a bilingual position requiring a higher level of official language proficiency^{Footnote 10}.

Note that If an employee is deployed to a position which has a lower linguistic profile, this employee no longer has to meet the requirements of the initial position, but does have to meet the language requirements of the new position within the initial exemption period^{Footnote 11}.

7.0 Inquiries

All inquiries relating to these procedures should be directed to your HR Consultant.

8.0 Roles and Responsibilities

Managers are responsible for:

• Respecting the PSOLEAO and the PSOLAR.
• Providing information/rationale, completing forms (as required) and obtaining appropriate approvals.
• Discussing training options with the College@ESDC.
• Ensuring that the employee begins language training immediately following a non-imperative appointment or shortly thereafter.
• Ensuring that administrative measures are put in place for the duration of the employee's language training.
• Communicating with their HR Consultant as appropriate to provide updates on medical exclusion cases.
• Submitting a request in the HRSC portal to start the bilingualism bonus once the employee meets the language profile

Human Resources Services Branch is responsible for:

• Providing advice and guidance to management (HR Consultants).
• Developing guidelines, procedures and tools (Workforce Strategies division).
• Contacting the Manager to discuss language training options (College@ESDC).
• Providing employees appointed on a non-imperative basis with second language training (College@ESDC).
• Monitoring and reporting on the applications of the PSOLEAO and PSOLAR (Workforce Strategies division).

9.0 References

Appendix A - Procedures

Launching an advertised Non-Imperative Staffing Process

1. The manager contacts the HR Consultant for advice and guidance prior to launching an advertised non-imperative staffing process.
2. The manager obtains approval^{Footnote 12} and sends it to the HR Consultant with their HRSC request. The approval must, at a minimum, include the following information:
   • Branch, Position title, Group and level, Position number (if available)
   • Justification for using the non-imperative option (refer to section 4 on p.3)

   There is no prescribed format for documenting the required level of approval. Approval may be given by way of wet signature, an e-mail from the Assistant Deputy Minister (ADM), a Workforce Management Committee (WMC) Record of Decision (ROD), etc. The "Request for Non-Imperative Staffing of Bilingual Positions" found in Appendix B can be used for this purpose.

3. The HR Assistant and Consultant initiate the staffing process.

Initiating a Non-Advertised Non-Imperative Appointment

1. The Manager contacts the HR Consultant for advice and guidance prior to initiating a non-imperative appointment or deployment.
2. Manager obtains approval and sends it to the HR Consultant with their HRSC request.

   There is no prescribed format for documenting the required level of approval. This can be by way of wet signature, an e-mail from the Assistant Deputy Minister (ADM), a Workforce Management Committee (WMC) Record of Decision (ROD), etc. The "Request for Non-Imperative Staffing of Bilingual Positions" found in Appendix B can be used for this purpose.

   The approved documents must contain a justification for the use of a non-imperative appointment (refer to section 4). They must also include a description of the administrative measures which will be implemented to ensure that the bilingual duties of the position are maintained and a description of the proposed action to be taken in the event that the employee does not meet the language requirements of the position within the prescribed period.

3. The manager completes the PSC "Statement of Agreement to Become Bilingual" (PDF) form or the "Request for Exclusions of Persons Eligible to Immediate Annuity" (Appendix C), as appropriate.
4. The manager obtains the employee's signature and the appropriate approval.
5. The HR Assistant and Consultant initiate the appointment.
6. Whenever possible, the manager sends the employee on language training before assuming the duties of the position, or as soon as possible following the appointment or deployment.

Specific procedures by type of exclusion:

1. a. Statement of Agreement to Become Bilingual:

   1. The manager completes the PSC form "Statement of Agreement to Become Bilingual." (PDF)
   2. Once the documentation is approved the manager sends the request and supporting documentation to the HR Consultant.
   3. HR Assistant prepares the Letter of Offer.

2. b. Exclusions of Persons Eligible to Immediate Annuity

   1. The manager completes the form: "Request for Exclusions of Persons Eligible to Immediate Annuity" (Appendix C), in consultation with the HR Consultant, and obtains the appropriate approval.
   2. The manager obtains a letter of resignation from the employee.
   3. Once documentation approved, management sends the request and supporting documentation to the HR Consultant.
   4. The HR Assistant prepares the Letter of Offer.

3. c. Requesting Exclusions on Medical Grounds:

   1. The manager contacts the HR Consultant to inform them of the situation. The HR Consultant will verify whether the three prerequisites for exclusion on medical grounds have been met:
      • The bilingual position is staffed on a non-imperative basis for an indeterminate period of time.
      • The employee received sufficient language training and made reasonable efforts to become bilingual at the level required for the position.
      • All possible accommodation measures related to language training or second language evaluation have been taken.
   2. The manager completes Part A (Conditions) and Part B (Request for referral for a Health Canada medical assessment or a Canadian Hearing Society hearing assessment) of the Exclusion on Medical Grounds document (in consultation with the HR Consultant). The Manager must be able to demonstrate that administrative measures will be in place for the whole duration of the exclusion period so that the bilingual functions of the position are maintained.
   3. The manager asks the employee to complete Part C (Request for Exclusion on Medical Grounds) of the Exclusion on Medical Grounds document. The employee may consult with or be accompanied by his union representative at any point in the process.
   4. The manager sends the documents to the HR Consultant who forwards them to Workforce Strategies. Workforce Strategies forwards it to the PSC^{Footnote 13}.
   5. The PSC reviews the file and sends a referral note to the Department which includes a list of additional documents required so that the employee can undergo a Health Canada medical assessment.
   6. Workforce Strategies forwards the request for all additional documentation required to the manager and the HR Consultant. Once completed, the manager sends back the documents to the HR Consultant who forwards them to Workforce Strategies. Workforce Strategies forwards them to Health Canada.
   7. Health Canada (HC) or the Canadian Hearing Society reviews the file, prepares a report and sends a letter to the PSC and the employee with the results of their assessment. This letter contains a recommendation as to whether the employee should be granted an exclusion.
   8. The PSC renders its decision regarding the exclusion in a letter to the Deputy Head.

      If it is recommended by HC that a medical exclusion be granted to the employee:

      • HR informs the manager of the PSC decision, and closes the file.
      • The manager puts administrative measures in place to maintain the bilingual duties of the position for the duration of the medical exclusion.
      • The employee is medically excluded from meeting the language requirements of their position as long as they remain in that position.

      If it is recommended by HC that the employee not be granted a medical exclusion:

      • The Manager deploys the employee to a position for which they are qualified and meet the language requirements.

Procedures for Requesting Extensions to the Exclusion Period

1. The manager contacts the HR Consultant four months or more prior to the expiry of the exemption period to inform them that an extension will be required. The HR Consultant will verify whether the conditions are met in order to proceed with an extension request.
2. The manager completes the form "Request an Extension of the Exclusion Period" (Appendix D) and obtains the appropriate approval.
3. The manager informs the employee in writing (i.e.: email) of the new date of the exclusion period.
4. The College@ESDC will contact the Manager to discuss continued second language learning for the employee.
5. If an extension of the exclusion period is not approved, or if the employee does not meet the language requirements of the position by the new target date the manager must, within two months following that date, appoint or deploy the employee to a position for which he or she is qualified and meets the language requirements.

Appendix B - Request for Non-Imperative Staffing of Bilingual Positions (Optional)

This request may be used by the sub-delegated manager to obtain approval to launch a non-imperative process or to make a non-imperative appointment.

Request for Non-Imperative Staffing of Bilingual Positions (Optional) - Form (DOCX, 35 KB)

Signed copy to be sent to the Human Resources Services Branch at : nc-lo-ol-lettres_decret-exclusion_letters-gd@hrdc-drhc.net

Appendix C – Request for Exclusions of Persons Eligible for Immediate Annuity

Request for Exclusions of Persons Eligible for Immediate Annuity - Form (DOCX, 32 KB)

Signed copy to be sent to the Human Resources Services Branch at : nc-lo-ol-lettres_decret-exclusion_letters-gd@hrdc-drhc.net

Appendix D – Request for an Extension of the Exclusion Period

Request for an Extension of the Exclusion Period - Form (DOCX, 37 KB)

Signed copy to be sent to the Human Resources Services Branch at : nc-lo-ol-lettres_decret-exclusion_letters-gd@hrdc-drhc.net