Exclusions from meeting official language proficiency - Frequently Asked Questions

• 1.1 What are the circumstances where a person can be excluded from meeting the official language proficiency of a bilingual position?

  The Public Service Official Languages Exclusion Approval Order provides 3 circumstances where people who meet the required level of proficiency in only one of the official languages may be excluded from meeting the official language proficiency requirements in their second official language:

  1. exclusion as a result of an agreement to become bilingual
  2. exclusion on medical grounds
  3. exclusion for persons eligible for an immediate annuity

• 1.2 Who do these exclusions apply to?

  The exclusions apply to people who meet both the following requirements:

  • they meet the required level of proficiency for the bilingual position in their first official language, but do not meet the official language proficiency required in their second official language
  • they are appointed through a bilingual non-imperative appointment; this means that they are appointed for an indeterminate period to a bilingual position that the deputy head, or sub-delegated authority, has decided does not need to be filled by someone who meets the required level of proficiency in both official languages at the time of the appointment.

• 1.3 Who do these exclusions not apply to?

  The exclusions do not apply to:

  • bilingual imperative appointments
  • term appointments
  • acting appointments
  • appointments of students or casual workers
  • deployments

  The Treasury Board of Canada’s Directive on Official Languages for People Management specifies that the provisions of the exclusion approval order governing non-imperative appointments also apply to non-imperative deployments.

• 1.4 Are people automatically excluded from meeting the official language proficiency requirements in their second official language if they’re appointed on a non-imperative basis to a bilingual position as a result of a reclassification, a reorganization, a lay-off or a leave of absence?

  No. A non-imperative appointment caused by a reclassification, a reorganization, a lay-off or a leave of absence is treated just like any other non-imperative appointment. As a result, individuals appointed on a non-imperative basis for any of these reasons may be excluded from meeting the official language proficiency requirements in their second official language in any of the following cases:

  • they submit to an agreement to become bilingual
  • they are exempted on medical grounds
  • they submit their resignation, if eligible for an immediate annuity within 2 years after the appointment

2. Exclusion with an agreement to become bilingual

• 2.1 What are the obligations of the deputy head, or sub-delegated authority, when appointing a person who enters into an agreement to become bilingual?

  The Public Service Official Languages Appointment Regulations set out the deputy head’s obligations when appointing a person who submits to an agreement to become bilingual. The deputy head, or sub-delegated authority, must ensure that the person is provided with the necessary language training during the 2-year agreement period provided by the exclusion approval order. If the excluded person has not attained the required level of second official language proficiency by the end of the 2-year period, the deputy head or sub-delegated authority must appoint or deploy the person to another position for which they meet the essential qualifications.

• 2.2 Is someone who enters into an agreement to become bilingual required to demonstrate their potential for attaining the required level of language proficiency?

  No. A person who enters into an agreement to become bilingual in accordance with the exclusion approval order does not have to demonstrate potential for attaining the required level of official language proficiency. Anyone who enters into this type of agreement is eligible for language training at public expense.

• 2.3 What does “language training at public expense” mean?

  “Language training at public expense” means that the language training is not paid for by the person who enters into an agreement to become bilingual. Language training may be provided by the organization, by a private supplier or by a combination of these, depending on the cost-effectiveness and efficiency of the modes of language training. The goal is to have the person reach the required level of proficiency in the official languages within the 2-year period set out in the agreement to become bilingual.

• 2.4 When must the agreement to become bilingual be completed and signed?

  The agreement to become bilingual must be completed and signed by the person considered for appointment or being appointed at the same time as the letter of offer or earlier.

  The Agreement to Become Bilingual form may be used to fulfill this requirement. It sets out both the obligations of the person who is entering into an agreement to become bilingual, and the obligations of the deputy head or their sub-delegated authority who is appointing the person on a non-imperative basis.

  Departments and agencies have the flexibility to develop their own form or add the information in the letter of offer, as long as sections 1(a) and (b) of the exclusion approval order are clearly indicated. That is, the person considered for appointment or being appointed agrees to both the following points:

  (a) to undertake to attain the level of official language proficiency required for the bilingual position, through language training at public expense, within a period of 2 years, beginning on the later of the date in the appointment agreement (letter of offer) to the bilingual position or the effective date of the appointment

  (b) if, at the end of the 2-year period, they have not attained the level of language proficiency required for the bilingual position, they agree to be appointed or deployed, on an indeterminate basis, to a position for which they meet the essential qualifications that is of a similar level and salary as the bilingual position

• 2.5 When does the 2-year agreement period begin?

  Generally, the 2-year agreement period begins on the date that the appointment becomes effective, or on the date of the written appointment agreement (letter of offer), whichever is later. In the case of a retroactive appointment, the 2-year agreement period begins on the date the appointment agreement (letter of offer) is signed by the person who submits to the agreement to become bilingual.

• 2.6 When does the period of agreement to become bilingual apply to a new non-imperative appointment/deployment?

  A person with an existing 2-year agreement to become bilingual could be appointed on a non-imperative basis to a new position.

  If the position requires the same or lower level of official language proficiency, the original 2-year period will apply.

  If the position requires a higher level of official language proficiency, a new 2-year period will apply.

• 2.7 When can the 2-year agreement period be extended?

  The Public Service Official Languages Appointment Regulations set out the circumstances where the deputy head or their sub-delegated authority may extend the 2-year agreement period for one or more periods of not more than 2 years in total. The 2-year agreement period may be extended for one of the following 4 reasons:

  • exceptional operational requirements that were unforeseen at the time of appointment
  • for example, a crisis endangering public health and safety
  • exceptional personal circumstances that were unforeseen at the time of appointment
  • for example, the illness of a child or a spouse, which prevents the person from undertaking or pursuing the necessary language training
  • physical, mental or learning impairment that hinders the learning of the other official language at the required level of language proficiency
  • for example, a form of dyslexia or any other similar impairment
  • the inability to obtain language training at the expense of the organization
  • for example, the inability to obtain language training for an employee located in an isolated region

• 2.8 What is the consequence if the agreement period is not extended in a timely manner?

  If the agreement period to become bilingual has not reached the maximum 4-year period, the initial period can be extended by one or more periods as long as one of the situations for extension listed under question 2.7 is met. The agreement period has to be extended before the end date, and approved by someone with appropriate sub-delegated authority. If not, the situation is non-compliant under the exclusion approval order and the regulations. The person is no longer excluded from meeting their second official language proficiency and for this reason, they do not meet the merit criteria for their appointment to a bilingual position.

• 2.9 Can the 2-year agreement period be extended because the employee is on assignment or posted abroad?

  Yes. At the time of appointment, the deputy head, or sub-delegated authority, agrees to ensure that the person receives the necessary language training within the 2-year period. If possible, the employee should undertake and complete the necessary language training before assuming the duties of the position or being posted abroad. If there are circumstances that prevent the deputy head, or sub-delegated authority, from providing the necessary language training during the 2-year period, they may extend this period for one or more periods of not more than 2 years in total.

• 2.10 Can the 2-year agreement period be extended because the employee is acting or on assignment to another position?

  No. The 2-year agreement period may only be extended for one of the 4 reasons specified in the regulations (see 2.7).

• 2.11 Can the 2-year agreement period be extended because there is no other position that is of a similar level and salary as the bilingual position for which the person meets the essential qualifications?

  No. If the person fails to attain the required level of official language proficiency at the end of the 2-year agreement period, the deputy head, or sub-delegated authority, must appoint or deploy the person to a position that is of a similar level and salary as the bilingual position for which the person meets the essential qualifications.

• 2.12 What happens if the person does not attain the level of language proficiency required for the bilingual position by the end of the agreement period?

  If the person has not attained the level of language proficiency required for the bilingual position by the end of the agreement period, they must be appointed or deployed to another position for which they meet the essential qualifications and which does not constitute a promotion or a demotion.

• 2.13 If a person is appointed or deployed to another position because they were unable to attain the required level of official language proficiency at the end of the agreement period, are they required to meet any asset qualifications, operational requirements and organizational needs that may be required for the new position?

  No. If the person is appointed or deployed to another position because they have not attained the required level of official language proficiency at the end of the agreement period, they are not required to meet any asset qualifications, operational requirements or organizational needs that may be required for the position.

• 2.14 If a person fails to meet the required level of second official language proficiency at the end of the agreement period, and there is no other position of similar level and salary as the bilingual position for which a person meets the essential qualifications, can that person be declared surplus?

  No. A person may only be declared surplus due to lack of work, discontinuance of a function or the transfer of work or a function outside the federal public administration.

• 2.15 Can a person who fails to meet the required level of second official language proficiency at the end of the agreement period refuse to be appointed or deployed to another position?

  No. When appointed to the bilingual position, the person has agreed to be appointed or deployed on an indeterminate basis to another position in the event that they have not attained the required level of second official language proficiency by the end of the period. In such situations, a person cannot refuse to be appointed or deployed to another position.

• 2.16 Can a person be appointed or deployed without their consent before the end of the agreement period to become bilingual, including any extension?

  No. The deputy head cannot appoint or deploy without their consent a person who has submitted an agreement to become bilingual before the end of the period.

3. Exclusion on medical grounds

• 3.1 What is the process for submitting a request for an exclusion on medical grounds?

  The form “Request for exclusion on medical grounds” is to be completed when submitting a request to exclude an individual from meeting the linguistic profile of a bilingual position, if both the following apply:

  • the individual is considered for a non-imperative appointment or is appointed on a non-imperative basis as per the Treasury Board Directive on Official Languages for People Management (appendix 2)
  • the individual has a medical condition that prevents, or that they believe prevents, them from learning their second official language or attaining the linguistic profile of their bilingual position

  The deputy head or their delegate is responsible for submitting the request to the Public Service Commission of Canada, which will then begin the formal process to determine whether the individual meets the requirements under section 4 of the exclusion approval order, and whether an exclusion on medical grounds may be granted.

  Once the request has been analyzed, the Public Service Commission will send the organization a referral note inviting the individual to undergo medical assessment by Health Canada. The individual and the organization will be required to provide additional information directly to Health Canada.

  When the medical assessment is completed, Health Canada will provide its recommendation directly to the hiring organization, who will need to provide a copy of the recommendation to the Public Service Commission. The Public Service Commission will then render a decision on whether the exclusion is granted and will inform the deputy head or their delegate of its decision. It is then the organization’s responsibility to inform the individual of the decision.

  For any question about the process, please contact the Public Service Commission at: cfp.delo-eao.psc@cfp-psc.gc.ca.

• 3.2 Can the deputy head, or sub-delegated authority, exclude a person on medical grounds?

  The form “Request for exclusion on medical grounds” is to be completed when submitting a request to exclude an individual from meeting the linguistic profile of a bilingual position, if both the following apply:

  • the individual is considered for a non-imperative appointment or is appointed on a non-imperative basis as per the Treasury Board Directive on Official Languages for People Management (appendix 2)
  • the individual has a medical condition that prevents, or that they believe prevents, them from learning their second official language or attaining the linguistic profile of their bilingual position

  No. The Public Service Commission retains the authority to approve exclusions from meeting official language proficiency requirements on medical grounds.

  For more information on submitting a request for an exclusion on medical grounds, see question 3.1.

• 3.3 Can a person appointed on an imperative basis be excluded from the application of merit with respect to official language proficiency on medical grounds?

  No. The exclusion on medical grounds applies only to non-imperative appointments. A person appointed on an imperative basis must meet the required proficiency in both official languages at the time of appointment.

• 3.4 Which medical condition allows a person to submit a request for exclusion on medical grounds?

  Under the exclusion approval order, section 4, the medical condition is described as “a long-term or recurring physical, mental or learning impairment that makes the person unable to attain, through language training, the official language proficiency required for the bilingual position.”

• 3.5 Has the exclusion on medical grounds changed since September 2021 with the amendment of the Directive on Official Languages for People Management (appendix 2)?

  No, the change did not affect the exclusion on medical grounds as set out in the exclusion approval order. It affected only the Directive on Official Languages for People Management (appendix 2) regarding the eligibility to non-imperative staffing for EX-2 to EX-5 positions. See question 6 under the Amendment to the Directive on Official Languages for People Management section on the Frequently Asked Questions GCwiki page (this page is only available to Government of Canada employees).

• 3.6 If a person has received an exclusion on medical grounds for a previous appointment, does this person needs to be excluded again for a new position staffed on a non-imperative basis?

  Yes; however, this is a streamlined process that does not require a new assessment from Health Canada unless the medical condition of the individual has changed. A request must be sent to the Public Service Commission, who will confirm the exclusion within a short period of time.

4. Exclusion for persons eligible for an immediate annuity

• 4.1 Who is eligible for an immediate annuity under the Public Service Superannuation Act?

  The eligibility for an immediate annuity is determined by the date the person became a member of the public service pension plan.

  If the person became a pension plan member on or before December 31, 2012:

  • to be eligible for an immediate annuity, they must be 60 years old with at least 2 years of pensionable service, or between 55 and 60 years old with 30 or more years of pensionable service

  If the person became a pension plan member on or after January 1, 2013:

  • to be eligible for an immediate annuity, they must be 65 years old with at least 2 years of pensionable service, or between 60 and 65 years old with 30 or more years of pensionable service

  For information on the federal public service pension plan, please contact the Government of Canada Pension Centre.

• 4.2 Does a person need to be eligible for an immediate annuity at the time of appointment to be excluded on the basis of eligibility for an immediate annuity?

  No. To be excluded on the basis of eligibility for an immediate annuity, the person must be eligible for the annuity within 2 years of the non-imperative appointment.

  If the person became a pension plan member on or before December 31, 2012:

  • they are excluded from the application of merit with respect to official language proficiency when they submit an irrevocable resignation, and if at the time of appointment, they are at least 58 years old, or between 53 and 58 years old with at least 28 years of pensionable service

  If the person became a pension plan member on or after January 1, 2013:

  • they are excluded from the application of merit with respect to official language proficiency when they submit an irrevocable resignation, and if at the time of appointment, they are at least 63 years old, or between 58 and 63 years of age with at least 28 years of pensionable service

• 4.3 If a person is eligible for an immediate annuity at the time of appointment, must they submit their resignation in order to be excluded from the application of merit with respect to official language proficiency?

  No. A person who is eligible for an immediate annuity at the time of appointment may choose to enter into an agreement to become bilingual if they wish to pursue their career in the public service.

• 4.4 When must a person submit their resignation in order to be excluded on the basis of eligibility for an immediate annuity?

  The resignation must be submitted to and accepted by the deputy head or sub-delegated authority before the appointment of the person to the bilingual position.

• 4.5 Can a resignation that is submitted in order to be appointed on a non-imperative basis be revoked or modified by the employee or by the deputy head or sub-delegated authority?

  No. A resignation submitted in order to be appointed on a non-imperative basis is final and irrevocable. Such a resignation may not be revoked or modified by the employee or by the deputy head or their sub-delegated authority.

• 4.6 Can an employee who provides notification in writing of their intention to resign be excluded from the application of merit with respect to official language proficiency?

  No. A notice of intention to resign that is not accepted in writing by the deputy head or sub-delegated authority does not constitute a resignation pursuant to section 63 of the Public Service Employment Act. In order to be excluded on the basis of eligibility for an immediate annuity, the person must be eligible for an immediate annuity under the Public Service Superannuation Act within 2 years after the non-imperative appointment and must submit an irrevocable resignation, accepted in writing by the deputy head or their sub-delegated authority. The resignation must take effect no later than the end of that 2-year period.