Part II, chapter 5: Employee unable to carry out their duties

5.1 Legal basis

PSER, section 7

(1) An employee referred to in subsection (4) who, as a result of a 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 the employee is ready to return to work, as certified by a competent authority, and ends on the earliest of

1. the fifth anniversary of 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;
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; and
4. if the employee is employed for a specified term,
   1. the day on which their period of employment is converted to indeterminate in their substantive position under subsection 59(1) of the Act, or
   2. the day on which they request of the deputy head, without good and sufficient reason, that their period of employment continue to be for a specified term despite subsection 59(1) of the Act.

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

(3.1) A person whose entitlement under subsection (1) ended within the period beginning on April 1, 2022 and ending on March 31, 2025 as a result of the operation of paragraph (2)(a), as that provision read on March 31, 2025, is entitled to an additional entitlement period that begins on April 1, 2025 and ends on the earliest of

1. April 1, 2028, and
2. the earliest day on which any of the events referred to in paragraphs (2)(b) to (d) occurs, with the word “employee” in those paragraphs being read as “person”.

(4) This section applies in respect of an employee who qualifies 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 Public Service Employment Act (PSEA), paragraph 30(2)(a), as well as the conditions of employment, in priority to all other persons except those with a statutory priority entitlement. There are no restrictions with respect to the occupational group, level or location of the position to which an appointment may be made pursuant to this entitlement. There is no specified order of appointment with respect to persons holding regulatory priority entitlements.

The person must qualify for disability compensation under a disability compensation provider as defined in subsection 7(4) of the Public Service Employment Regulations (PSER), and the disability admissibility decision must occur 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 carry out the duties of their position? and
• Is the employee’s inability to carry out the duties of their position a permanent situation?

An employee who is temporarily unable to carry out 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 backfilled 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 Additional entitlement period

A person whose entitlement under subsection (1) ended within the period beginning on April 1, 2022 and ending on March 31, 2025 as a result of the operation of paragraph (2)(a), as that provision read on March 31, 2025, is entitled to an additional entitlement period that begins on April 1, 2025 and ends on the earliest of

1. April 1, 2028, and
2. the earliest day on which any of the events referred to in paragraphs (2)(b) to (d) occurs, with the word “employee” in those paragraphs being read as “person”.

Persons who meet the above criteria and who have not already been contacted by the PSC regarding this additional entitlement period should contact the PSC at the following e-mail address: cfp.ap-demandes-pa-inquiries.psc@canada.cfp-psc.gc.ca.

5.4 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, subsection 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, subsection 7(1), would also be eligible to the priority entitlement for an employee unable to carry out their duties.

5.5 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 under PSER subsection 7(4). 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.

5.6 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 employee qualifies for disability compensation under a plan listed in PSER subsection 7(4). If the person is certified by a competent authority within the five-year period as ready to return to work (though not to their own position) on an effective date which also falls within the five-year qualifying period, then they become eligible for the priority entitlement starting on that effective date.

5.7 Competent authority

The competent authority is a health care provider, normally 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”.

The certification of readiness to return to work must be provided by a person who has examined or treated the employee and can provide a diagnosis of their readiness to return to work. A clear statement that the person is permanently unable to carry out the duties of their substantive position, or a description of any limitations that prevent the person from doing so must be provided by the competent authority.

Questions about what would constitute a competent authority should be directed to the Public Service Commission’s (PSC) Priority Entitlements Consultants.

5.8 Effect of termination of employment on entitlement

Termination of employment, if as a result of the person’s disability, during the five-year "qualifying period", or during the five-year priority entitlement period, does not terminate this priority entitlement. Nor does it exempt the home organization from responsibility for the person with a priority entitlement should they be ready 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 five-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 this priority entitlement.

An employee who is terminated for disciplinary reasons is not eligible for the employee unable to carry out their duties 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.

5.9 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 qualified for disability compensation as per PSER subsection 7(4), and ends on the earliest of:

1. the fifth anniversary of 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;
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; and
4. if the employee is employed for a specified term,
   1. the day on which their period of employment is converted to indeterminate in their substantive position under subsection 59(1) of the Act, or
   2. the day on which they request of the deputy head, without good and sufficient reason, that their period of employment continue to be for a specified term despite subsection 59(1) of the Act.

Note:

The start dates and durations of the various priority entitlements are set by the PSEA and/or PSER and cannot be altered. The Priority Information Management System (PIMS) will only begin notifying persons with a priority entitlement of positions once the person’s registration has been activated. Late registration and activation will reduce the period PIMS identifies positions and may result in lost positions for the person with a priority entitlement.

5.10 Relapse situations

If an employee holding this priority entitlement type has a relapse and qualifies for a new admissibility decision for disability compensation as per PSER subsection 7(4) during a period while they are an employee, then the cycle starts all over again - the employee would start a new five-year qualifying period in which to be declared ready to return to work by a competent authority, and once so declared, another five-year priority entitlement would start.

If the employee has a relapse and does not receive a new admissibility decision for disability compensation for a plan mentioned under PSER subsection 7(4), then the existing five-year priority entitlement would continue until the employee was either able to return to work and was appointed, deployed, or converted from a specified term to indeterminate under PSEA subsection 59(1), or the priority entitlement period expires.

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

The expiry of the priority entitlement does not in itself constitute a mechanism for ending the employee's employment. The employee remains the responsibility of their home organization. Organizations should discuss this matter with their Labour Relations to determine options.

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

5.12 Confidentiality of medical information

Home organizations must not disclose confidential medical information or diagnostic assessments to the PSC or to hiring organizations where the person with a priority entitlement is being considered.

5.13 Appointment to a lower-level position

A person with an employee who is unable to carry out their duties priority entitlement who is appointed or deployed indeterminately, or converted to indeterminate under subsection 59(1) of the Act, to a lower-level position during the priority period may be eligible for the reinstatement priority entitlement (PSER, subsection 10(1)).

Note:

The hiring organization must inform the PSC of the lower-level appointment by submitting a PIMS Referral Feedback Form or a PIMS Request for Priority Clearance to Appoint a Person with a Priority Entitlement. Once the lower-level appointment is made, the hiring organization is responsible for updating the person’s priority entitlement type in PIMS if they are eligible for the reinstatement priority entitlement.

5.14 Temporary work - protecting the priority entitlement

When an employee who is unable to carry out their duties is deemed ready 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 term 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.

5.15 Concurrent priority entitlements

The priority entitlement for employees unable to carry out their duties 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 backfilled indeterminately

• If the employee unable to carry out their duties on leave of absence is replaced by another person's indeterminate appointment or deployment to their substantive position, then the employee unable to carry out their duties may also become 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 unable to carry out their duties, to be used, as needed; and
• The organization must notify the PSC of the employee's additional status by using the "Change Priority Type" function in PIMS, indicating in "Additional Comments" that the priority entitlement for employees unable to carry out their duties continues and sending the PSC the supporting documentation.

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 unable to carry out their duties 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 unable to carry out their duties, to be used, as needed; and
• The organization must notify the PSC by using the "Change Priority Type" function in PIMS and sending the PSC the supporting documentation. PIMS would then display the surplus priority entitlement as the dominant priority entitlement.

5.16 Documents required by the Public Service Commission to support registration and activation

• The Priority Information Management System (PIMS) online Registration Form
• Signed copy of the Privacy Consent Form for Person with a Priority Entitlement if the organization has completed a full new registration and activation
• 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 carry out the duties of their position, with an effective date of return to work
• Letter advising the PSC when, and if, the employee ceased the employment relationship for reasons linked to their disability, if applicable

Note 1:

All supporting documents must be provided to the PSC Priority Entitlements Consultant no later than 10 working days following the activation of the registration in PIMS.

Note 2:

Persons with a priority entitlement who want to be identified for bilingual positions should have valid second language results at the time of activation in PIMS or should be scheduled for second language testing if they have never been tested or if their results have expired.

5.17 Note for registration and activation

Nothing in this priority entitlement affects or replaces the Duty to Accommodate in accordance with Employer policies. For more information see the Directive on the Duty to Accommodate.

5.18 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 unable to carry out their duties 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 unable to carry out their duties priority entitlement (see subsection 5.7 above) the responsibility for payment and the amounts payable are negotiated between the hiring organization and the person with an employee unable to carry out their duties 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.