Part II, chapter 5: Employee who becomes disabled

5.1 Legal basis

PSER, section 7

(1) An employee who becomes disabled and who, as a result of the disability, is no longer able to carry out the duties of their position is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and sub-sections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act if

1. within five years after the day on which the employee became disabled, the employee is certified by a competent authority to be ready to return to work on the day specified by the authority; and
2. the day specified is within five years after the day on which the employee became disabled.

(2) The entitlement period begins on the day on which a competent authority certifies that the employee is ready to return to work, if that day is within five years after the day on which they became disabled, and ends on the earliest of

1. the day that is two years after the day on which the entitlement period begins;
2. the day on which the employee is appointed or deployed to a position in the public service for an indeterminate period; and
3. the day on which the employee declines an appointment or deployment to a position in the public service for an indeterminate period without good and sufficient reason.

(3) The entitlement under subsection(1) continues even if, as a result of the person's disability, they cease to be an employee.

(4) For the purpose of this section, an employee is considered to be disabled if they qualify for disability compensation under

1. the Canada Pension Plan;
2. An Act Respecting the Québec Pension Plan, R.S.Q., c. R-9, as amended from time to time;
3. the Public Service Superannuation Act;
4. the Government Employees Compensation Act; or
5. a public service group disability insurance plan.

5.2 The entitlement

Persons holding this priority entitlement are entitled to be appointed to any position in the public service for which they meet the essential qualifications, referred to in PSEA, paragraph 30(2)(a), in priority to all persons, except for those who possess a statutory priority entitlement. There is no specified order of appointment with respect to persons holding regulatory priority entitlements.

The person must be declared disabled by a disability compensation provider as defined in subsection 7(4) of the PSER, and the disability compensation benefit period must start during a period when the person was an indeterminate employee, as defined by the PSEA and in accordance with PSER, subsection 4(2).

The type of disability, whether the disability was incurred at the workplace or away from it, or whether the employee became disabled while on duty are not relevant in determining eligibility for this priority entitlement. The only factors that need to be considered are:

• Did the employee, as a result of the disability, qualify for disability benefits/compensation?
• Was the employee, as a result of the disability, unable to perform the duties of their position? and
• Is the employee’s inability to perform the duties of their position a permanent situation?

An employee who is temporarily unable to perform the duties of their position is to be accommodated by the organization in accordance with the Treasury Board Secretariat (TBS) Directive on the Duty to Accommodate. Such temporary situations are not eligible for the priority entitlement.

If the person is still an employee at the time they are certified by a competent authority as being ready to return to work, their position has not been back-filled on an indeterminate basis and its duties have not changed to the point that it is a new position, the employee simply returns to the position. No appointment is needed and the priority entitlement is not required.

If the employee is able to perform the duties of their position but not in that location (section, division, branch, geographic region, etc.) then there is no eligibility for the priority entitlement. It is a duty to accommodate situation to be dealt with in accordance with the TBS Directive on the Duty to Accommodate. However, if the restriction is such that the employee cannot work at any location within the entire organization, the organization should contact the PSC to discuss the details of the specific case.

The priority entitlement continues, even if the employee is released as a result of the disability. An employee is considered to be released as a result of the disability further to a resignation on medical grounds, a retirement on medical grounds or a termination for reasons other than breaches of discipline pursuant to the Financial Administration Act.

5.3 The meaning of "disabled"

The employee is considered to be disabled if they qualify for disability compensation under an applicable compensation plan, including the Canada Pension Plan, the Quebec Pension Plan, the Public Service Superannuation Act, the Government Employees Compensation Act or a public service group disability insurance plan. Provincial workers' compensation plans are also considered to be applicable compensation plans. An employee who is in receipt of benefits from a plan other than those listed in PSER, section 7(4), who can provide documentation to demonstrate that they would qualify for one of the listed plans and that they meet all other conditions under PSER, section 7(1), would also be eligible to the priority entitlement for the employee who becomes disabled.

5.4 Date the employee becomes disabled

For the purpose of this priority entitlement, the date on which the employee becomes disabled is the effective date on which the employee qualifies for disability compensation. This effective date is determined by the applicable compensation plan and may not necessarily be the same date on which the plan informs the employee and the home organization of its decision.

5.5 The five-year qualifying period

The disabled employee is entitled to a "qualifying period" of five years in which to qualify for the priority entitlement.

The five-year qualifying period starts on the date the insurer recognizes the person as being disabled. If the employee is certified by a competent authority as able to return to work (though not to their own position) on an effective date which falls within the five-year qualifying period, then the employee becomes eligible for the priority entitlement starting on that effective date.

5.6 Competent authority

The competent authority who must certify that the employee is ready to work would normally be the treating physician. Depending on the situation, the competent authority could also be an ergonomic specialist, a psychologist, physiotherapist or any other specialist who, for the case at hand, could reasonably be considered to be a “competent authority”. Questions about what would constitute a competent authority should be directed to the Public Service Commission’s (PSC) Priority Entitlements Division.

The certification of fitness to return to work must be provided by a person who has examined or treated the employee and can provide a diagnosis. A clear description of any accommodation requirements or limitations will aid in identifying appropriate employment opportunities and ensure employer awareness of any required accommodation.

In certain situations, the insurer that originally certified that the employee was disabled may require additional health assessments and/or information to assist in appropriate placement or work modification to facilitate the return to work. This information would normally be available through the Workplace health and safety.

5.7 Effect of termination of employment on entitlement

Termination of employment for cause, during the five-year "qualifying period", or during the two-year priority entitlement period, does not terminate the disability priority entitlement. Nor does it exempt the home organization from responsibility for the person with a priority entitlement should they be able to return to work and exercise this priority entitlement.

Subsection 7(3) of the PSER stipulates that the priority entitlement continues even if, as a result of their disability, they cease to be an employee. This means that if their employment is terminated due to incapacity to return to work because of illness or injury in the workplace, the right to the disability priority entitlement during the five-year "qualifying period" or during the two-year priority entitlement period continues.

The Employer describes three situations for terminating employment in these circumstances: Resignation on medical grounds, retirement on medical grounds and termination for reasons other than breaches of discipline pursuant to the Financial Administration Act (termination for cause for reasons of medical incapacity). The home organization remains responsible for the person with a priority entitlement if they become eligible for the five-year qualifying period and/or able to return to work and exercise the disability priority entitlement.

An employee who is terminated for disciplinary reasons is not eligible for the employee who becomes disabled priority entitlement, even if the employee is disabled and is in receipt of disability benefits. The reason for this is that the termination is not linked to the person’s disability.

5.8 Duration of entitlement

The priority entitlement period begins on the day on which a competent authority certifies that the employee is ready to return to work, if that day is within five years after the day on which they became disabled, and ends on the earliest of:

1. the day that is two years after the day of certification;
2. the day on which the employee is appointed or deployed to a position in the public service for an indeterminate period; or
3. the day on which the employee declines an appointment or deployment to a position in the public service for an indeterminate period without good and sufficient reason.

5.9 Relapse situations

If an employee holding this priority type has a relapse and qualifies again for disability insurance, then the cycle starts all over again - the employee would have another five years in which to be declared fit to return to work, and once so declared, another two-year priority entitlement would start.

If the employee has a relapse and is not found qualified for one of the disability insurance programs mentioned in the PSER, then the existing two-year priority entitlement would continue until the employee was either able to return to work and was appointed, or the priority entitlement period expires.

5.10 Status when the entitlement expires (termination/continuation of employment)

The expiry of the priority entitlement at the end of the two-year period does not terminate an employee's employment. The employee remains the responsibility of their home organization.

The organization should submit a request for the PSC to remove the person from PIMS when the priority entitlement period expires, unless the organization provides a registration for another priority type.

5.11 Confidentiality of medical information

Home organizations cannot disclose confidential medical information or diagnostic assessments to the PSC or to hiring organizations to which the person with a priority entitlement is identified for employment consideration.

5.12 Appointment to a lower-level position

A person with an employee who becomes disabled priority entitlement who is appointed indeterminately to a lower-level position during the priority period becomes eligible for the reinstatement priority entitlement (PSER, section 10).

5.13 Temporary work - protecting the priority entitlement

When an employee who has become disabled is deemed fit to return to work by a competent authority but is unable to perform the duties of their position, home organizations are sometimes able to offer temporary work on either a part-time or a full-time basis to assist the employee’s reintegration into the workforce. The home organization must ensure that such arrangements are clearly documented and communicated to the parties involved as temporary, by making either a specified period appointment or an assignment or secondment with a clearly indicated start and end date. This measure will ensure that the arrangement is not seen as an indeterminate appointment, which would have the effect of ending the priority entitlement.

5.14 Concurrent priority entitlements

The priority entitlement for employees who become disabled may run concurrently with, and independently of, other priority entitlements to which the person may be entitled, such as leave of absence, relocation of spouse or common-law partner and surplus. The provisions, rights and obligations of the other priority types would also apply.

1. Status if employee's position is back-filled indeterminately

• If the disabled employee on leave of absence is replaced by another person's indeterminate appointment or deployment to the disabled employee's substantive position, then the disabled employee also becomes entitled to the leave of absence priority entitlement;
• The two priority types run concurrently but the leave of absence priority will be displayed in PIMS, as this is the higher of the two priority entitlements. The file will be annotated to show the priority entitlement for employees who become disabled , to be used, as needed; and
• The organization must notify the PSC of the employee's additional status by using the "Change in Priority Type" function in PIMS, indicating in "Additional Comments" that the priority entitlement for employees who become disabled continues.

2. Status if the employee's position is declared surplus

• In this case, if the employee’s position is declared surplus, then they have a surplus priority entitlement and an employee who becomes disabled priority entitlement;
• The two priority entitlements run concurrently but the surplus priority entitlement will be displayed in PIMS, as this is the higher of the two priority entitlements (a statutory entitlement if appointed within their home organization). The file will be annotated to show the priority entitlement for employees who become disabled, to be used, as needed; and
• The organization must notify the PSC by sending a "Change in Priority Type" via the on-line "Registration Form". PIMS would then display the surplus priority entitlement as the dominant priority entitlement.

5.15 Documents required by the Public Service Commission to support registration

• The Priority Information Management System on-line Registration Form
• Signed copy of the Privacy Consent Form for Person with a Priority Entitlement if the organization has completed a full registration
• Letter or form from the appropriate disability insurance plan certifying that the employee qualifies for disability compensation, with the effective date
• Letter or form from the competent authority certifying that the employee is ready to return to work but can no longer perform the duties of their position, with an effective date of return to work and information on any restrictions or limitations that may apply
• Letter advising the PSC when, and if, the employee is released for cause, in order to re-evaluate the recommended groups and levels for job identification purposes

5.16 Notes for registration

Job opportunity identification can be better targeted if the PSC is made aware of any limitations on the type of work the person with a priority entitlement is capable of performing and the type of job accommodation that may be needed. The PSC will gather this information from the person with a priority entitlement and its disclosure to the PSC will be voluntary. The person with a priority entitlement can refer to the competent authority who certified that they were ready to return to work, the Workers' Compensation Board or the applicable insurers. In the event special assistance is required, the Occupational Health and Safety Program at Health Canada is available to act as a resource in establishing appropriate work restrictions.

5.17 Travel and relocation costs

Travel and relocation costs are the responsibility of the Employer. All questions concerning travel and relocation should be directed to TBS.

The responsibility for travel and relocation costs incurred while considering or appointing persons with a priority entitlement varies according to the situation. Typically, the hiring organization pays the costs when the employee who becomes disabled has not been released for cause as a result of their disability.

When the employee has been released for cause as a result of their disability, if they have an employee who becomes disabled priority entitlement (see sub-section 5.7 above) the responsibility for payment and the amounts payable are negotiated between the hiring organization and the person with an employee who becomes disabled priority entitlement.

All persons with a priority entitlement are encouraged to speak to their organization's human resources staff for advice on eligibility for travel or relocation expenses.

For further information, consult the National Joint Council (NJC) Travel Directive and the Relocation Directive.

These Directives are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to TBS.