The Public Service Official Languages Exclusion Approval Order and the Public Service Official Languages Appointment Regulations - Frequently Asked Questions

1. Exclusion from meeting official language proficiency

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 (PSOLEAO) 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 the exclusions of the PSOLEAO apply to?

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

  • they are unilingual, meaning they meet the required level of proficiency in one of the official languages
  • they are appointed through a non-imperative appointment, meaning 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

The person appointed must also meet any qualifications with respect to shorthand, typing, translation, editing, proofreading, revising, writing or interpretation or meet any specialized or expert proficiency requirements in one or both official languages.

1.3 Who do the exclusions of the PSOLEAO not apply to?

The exclusions do not apply to:

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

The Treasury Board Directive on Official Languages for People Management specifies that the provisions of the PSOLEAO governing non-imperative appointments also apply to deployments.

2. Reclassification, reorganization, lay-off or leave of absence

2.1 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

3. Agreement to become bilingual

3.1 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 (PSOLAR) 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 Public Service Official Languages Exclusion Approval Order (PSOLEAO). 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.

3.2 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 Public Service Official Languages 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.

3.3 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.

3.4 When must the statement of agreement to become bilingual be completed and signed?

The statement of agreement to become bilingual must be completed and signed before one of the following:

  • the appointment of the person to the bilingual position, for an external appointment process
  • notification of the name of the person considered for appointment, for an internal appointment process

3.5 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, whichever is later. In the case of a retroactive appointment, the 2-year agreement period begins on the date the appointment agreement is signed by the person who submits to the agreement to become bilingual.

3.6 When does the period of agreement to become bilingual apply to a new non-imperative appointment?

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.

4. Extension of agreement period

4.1 When can the 2-year agreement period be extended?

The Public Service Official Languages Appointment Regulations (PSOLAR) 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

4.2 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.

4.3 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 4.1).

4.4 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.

5. Inability to attain required level of official language proficiency

5.1 What happens if the person does not attain the level of language proficiency required for the bilingual position by the end of the 2-year agreement period?

If the person has not attained the level of language proficiency required for the bilingual position by the end of the 2-year 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.

5.2 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 2-year 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.

5.3 If a person fails to meet the required level of second official language proficiency at the end of the 2-year 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.

5.4 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 2-year period. In such situations, a person cannot refuse to be appointed or deployed to another position.

5.5 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.

6. Exclusion on medical grounds

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

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

6.2 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.

7. Exclusion for persons eligible for an immediate annuity

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

Any person who is 60 years of age with at least 2 years of pensionable service or who is between 55 and 60 years of age with 30 or more years of pensionable service is eligible for an immediate annuity.

7.2 Must a person be eligible for an immediate annuity at the time of appointment in order to be excluded on the basis of eligibility for an immediate annuity?

No. In order 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. As a result, any person who, at the time of appointment, is at least 58 years of age or who is between 53 and 58 years of age with at least 28 years of pensionable service at the time of appointment, and who submits an irrevocable resignation, is excluded from the application of merit with respect to official language proficiency.

7.3 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.

7.4 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 one of these things happen:

  • the appointment of the person to the bilingual position, in the case of an external appointment process
  • the notification of the name of the person considered for appointment, in the case of an internal appointment process

7.5 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.

7.6 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.

8. Acting appointments

8.1 When are acting appointments excluded from the application of merit, with respect to official language proficiency?

The Public Service Employment Regulations provide for the following exclusions from the application of merit, with respect to official language proficiency, for acting appointments:

  1. to a vacant bilingual position, if the position cannot be filled by a person who meets the official language proficiency qualification and the cumulative period of all persons acting in that position is less than 4 months (subsection 14(2))
  2. to an encumbered bilingual position, if the cumulative period of all persons acting in that position is less than 4 months (subsection 14(1))
  3. to an encumbered bilingual position, if the position cannot be filled by a person who meets the official language proficiency qualification and the cumulative period of all persons acting in that position lasts between 4 and 12 months (section 15)
  4. to a bilingual position while the incumbent is on language training, if the position cannot be filled by a person who meets the official language proficiency qualification and the cumulative period of all persons acting in that position is between 4 and 18 months (section 16)
  5. to a position in a rotational system in order to provide for the movement of employees within and outside Canada in the following organizations:
    1. Immigration, Refugees and Citizenship Canada
    2. Global Affairs Canada
    3. Canadian Border Services Agency (Section 17)

8.2 What do “vacant” and “encumbered” mean in the context of the Public Service Employment Regulations?

A position is considered “vacant” if no employee has a right to return to that position. If an employee has a right to return to the position, regardless of the reason for which the employee is not performing the duties of the position or of the period for which the duties are not performed, then the position is considered to be “encumbered.”

8.3 Is the acting appointment of a person who meets the language proficiency qualification included in the total period during which acting appointments to a bilingual position are excluded from the application of merit respecting official language proficiency?

Yes. The acting appointment of a person who meets the language proficiency qualification is included in the cumulative period of the acting appointments to the bilingual position.

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