Archived - Guidance on Leave of Absence and Selection of Employees for Retention or Lay-off (12-10)

2012-05-08

As part of its continuing effort to support federal organizations under the Public Service Employment Act facing workforce adjustment and transition, the Public Service Commission (PSC) has collaborated with the Office of the Chief Human Resources Officer (OCHRO) to develop more specific guidance on how managers should handle the selection of employees for retention or lay-off (SERLO) when an employee is on leave of absence.

As a first step, managers should ensure that the employee’s position has not been staffed indeterminately if the person has been on leave continuously for over one year. If a position has been staffed indeterminately, the employee on leave will be eligible for a statutory leave of absence priority and work force adjustment (WFA) will not apply. For more information, refer to the TBS Directive on Leave and Special Working Arrangements, and PSC Guide on Priority Administration.

Assessment of employees on leave

In many circumstances, an employee who is on a leave of absence can be included in a SERLO. The most appropriate option should be determined on a case by case basis in conjunction with labour relations advice. The following factors should be considered when making the determination:

• The nature of the leave;
• The employee’s expected date of return from leave;
• Special circumstances linked to grounds in the Canadian Human Rights Act; and
• Accommodation measures that might be required for the assessment.

In some situations, the manager will be in a position to conduct the assessment of the employee without requiring their participation when the assessment can be based entirely on reference checks, performance appraisals or managerial knowledge. Caution must be exercised when considering this option to ensure that the person who has been on leave of absence be given access to the same support and information as other employees.

Employees on a leave of absence that is linked to a protected ground under the Canadian Human Rights Act (extended sick leave, maternity leave, etc.) must be accommodated in the SERLO up to the point of undue hardship. (Note: When an employee is on medical leave, a physician may be required to determine fitness to participate in the assessment.) If it is determined that the employee on such a leave cannot be accommodated, labour relations staff should be consulted on how to proceed.

If, after consultation with labour relations, it is determined that the employee can reasonably be expected to participate in the selection for retention or lay-off, refer to the Assessment Module of the PSC Guide on the Selection of Employees for Retention or Lay-off (and, if appropriate, the PSC Guide for Assessing Persons with Disabilities). Some important considerations include:

• Will the assessment be conducted without requiring the participation of the employee (i.e., when the assessment is based entirely on reference checks, performance appraisals or managerial knowledge)?
• If the employee’s participation is required, accommodation requirements should be determined before the assessment is conducted. Accommodation measures could include conducting assessments outside normal working hours or using alternate methods such as video, teleconference, or e-mail.
• An employee who has been on leave of absence may not have had access to all of the support and information that other employees have been given. They should be provided with the same information at the same time as the employees present on the job, given adequate time to prepare for the assessment and access to resources and other materials that are available through the workplace. The assessment methods may need to be adapted to ensure that:
  • The assessment is fair;
  • Barriers are removed;
  • The result is equivalent to the information that is on hand for other employees; and
  • The result provides adequate support for the selection decision.

As soon as the assessment results are determined, the employee should be informed of the results and provided with the opportunity to complain to the Public Service Staffing Tribunal at the same time as the other employees included in the assessment, in accordance with the considerations set out in Step 7 in the Guide on the Selection of Employees for Retention or Lay-off.

This information applies equally to employees and to executives and each leave situation needs to be examined individually. In addition, all employees on leave should be kept informed on a timely basis of the WFA and SERLO situations that affect their work unit. They should be provided with the same information at the same time as the employees present on the job.

Should you require more information concerning the management of leave and reintegration and WFA, please contact your organization’s WFA Coordinator. For questions related to SERLO, please contact the PSC strategic consultant responsible for your organization.

Hélène Laurendeau
Senior Vice President

c.c.: Chiefs of Staffing