WFA and Absences from the Workplace

What if my position is affected by a workforce adjustment situation while I am away on leave?

If you are on maternity, parental, sick leave, or other leave without pay, and your position has not been staffed indeterminately, you will be notified in writing at the same time as other employees. However, normally a decision as to whether you will be given a Guarantee of a Reasonable Job Offer or be declared an Opting Employee will not be made until you return to work at the end of the leave.

During the affected period however, even if you are on leave, you may be invited to participate in any assessment processes for retention/layoff or staffing processes to fill new vacancies. The Public Service Commission advises managers to look at each situation on a case-by-case basis, depending on the type of leave. For example, if an employee is on long term sick leave and is unable to participate in an assessment process, or needs accommodation in order to do so, management must accommodate the employee. See Guide on the selection of employees for retention or lay-off, Question 25. Can employees on leave be assessed in a SERLO process?

Even if you are on leave when you are notified that you are affected, you should become aware of your rights under the WFAA and management should keep you informed about the situation.

If you have been on leave for more than one year and your position was filled indeterminately, then the Workforce Adjustment would not be triggered. You should already be entitled to another type of priority for appointment (for example, a leave of absence priority or disability priority).

Would being declared “affected” in a workforce adjustment situation affect payments such as Disability Insurance (DI), maternity or parental leave top-up, or workers compensation?

Being declared “affected” or surplus during a period of leave should not affect these payments or allowances.

As indicated, when you are ready to return to work, the employer should then determine whether to provide you with a guarantee of a reasonable job offer or declare you anopting employee. Note that the employer has an obligation to accommodate and must not discriminate against an employee due to his/her disability or sex.

Note that if you are unable to fulfill the required “pay-back” time period after your return from maternity or parental leave because of a lay-off or WFA situation, you will not have to re-pay the amount of top-up, since you are leaving involuntarily (see the Maternity Leave provisions in your Collective Agreement).

What happens if I am declared affected by a WFA situation and I am due to go on maternity or parental leave in the coming months?

The answer to this question will depend on your particular situation, the timing of the WFA situation, and the timing of your leave. In all cases, it is important to ask questions of your manager and your union, and be aware of your rights and obligations under the WFAA.

First, remember that being declared “affected” does not necessarily mean that you will become surplus. It is possible to be declared “affected” and ultimately remain in your job . If however, you are declared “surplus”, due to a lack of work, a relocation, an office closure, or an alternative delivery initiative, then the WFAA sets out certain obligations and processes for what will happen next.

The Workforce Adjustment Agreement does not specifically deal with situations where employees are on leave or a planning to go on leave. However, management must always treat each situation on a case-by-case basis and special considerations must be made.

What to do if you are affected:

Speak to your manager about your situation first and ask how they plan to treat your particular situation. Will time periods be extended or paused during the leave? Will decisions need to be made before or after your leave? Will special considerations or accommodations be made for your situation? Get as much information as possible, preferably in writing.

Review the tools provided on the PSAC website on workforce adjustment and familiarize yourself with them. Speak to your union representative about your situation and ask their advice.

Management has a duty to accommodate, and you can request special accommodation due to your maternity leave. If you are refused accommodation or negatively impacted solely because of your pregnancy or family status, this may be considered discrimination under the Canadian Human Rights Act. If you believe you have been the victim of discrimination based on pregnancy or family status, speak to your union representative about the situation, and the possibility of filing a grievance under the No Discrimination clause in the collective agreement.

What to do if you are a union representative:

These and other questions are also something that should be put on the agenda for discussions by the workforce adjustment committee. Union representatives on these committees should ask management how these situations will be handled, and provide input to protect members in these situations. While they are case-by-case situations, certain guidelines and policies can be put in place to ensure that workers are treated as fairly and equitably as possible.

Leave without pay and the 120 day opting period

If an employee is about to go on maternity or parental leave, sick leave, or if they become injured or seriously ill during the opting period, will the 120 day opting period be suspended or put on hold?

From a “policy” perspective Treasury Board advises that the Workforce AdjustmentAppendix merely refers to the collective agreement, which states that an “Opting employeeis an indeterminate employee whose services will no longer be required because of aworkforce adjustment situation, who has not received a guarantee of a reasonable job offer from the deputy head and who has one hundred and twenty (120) days to consider the options in section 6.3 of this Appendix”.

In other words there is nothing in the Workforce Adjustment Appendix that provides any instruction as to how the 120 days can be broken. Treasury Board takes the position that once the 120 clock has started, it cannot be stopped. PSAC does not agree with such a “blanket rule”.

At the same time, Treasury Board acknowledges that situations such as prolonged illness, giving birth, etc. will arise when it is only fair that the time limit be broken. During these types of situations employees would not be able to fully exercise their options during the full 120 day period. Although they might be able to make a decision and choose an option if they are off work during the 120 day period, their ability to participate as an opting employee in the alternation process would be severely compromised. They would not be at work to access GC Forums/Alternation or use other mechanisms that may be in place. Similarly if an employee were to choose Option 1, the 12 month surplus period, they would not be available to actively seek work, go to interviews, and in general be proactive as a consequence of their surplus priority status.

In this instance, if the leave is due to pregnancy, family status, or disability the employer’s duty to accommodate may override the 120 day time limit, depending on the circumstances.

Treasury Board is aware of this and has advised departments to deal with these kinds of situations on a case by case basis and to always keep potential accommodation situations in mind.

1. What should employees do in the case of maternity leave or leave without pay for illness that can be predicted?

Examples of this type of situation include employees who has applied for their maternity leave, or employees who know that they will be having an operation that will impose significant recovery time, and will undergo a merit process (SERLO) which is expected to end before the date on which they go on leave.

Employees should remind the employer (preferably with union representation) that they have approved leave coming up that must be accommodated. The 120 day period should not be started before the leave, or should be stopped when the leave begins.

The employer should keep the employees in affected status until their leave is over and they have returned to work and only give a GRJO or access to the opting provisions at that time.

If the employer refuses to make this accommodation, employees,may grieve, through the union, that their duty to be accommodated has been denied. This constitutes discrimination on the basis of sex, family status, and/or disability. Remember that there are time limits for filing a grievance so it is wise to consult your union representative and your collective agreement as soon as possible once you receive the refusal.

2. What should employees do when they have already entered into their 120 day period and an unexpected LWOP situation like a sudden illness or an accident occurs that unavoidably makes it impossible to take advantage of the 120 day time to make a decision or search for an alternate?

Employees should advise their union representative as soon as possible that they wish to be accommodated. Then the union representative should instruct the employer to meet its duty to accommodate and suspend the 120 day time limit as of the date that the unanticipated LWOP situation commenced.

If the employer refuses, the union acting with an employee, can initiate grievance measures against the employer for its failure to meet its duty to accommodate the employee (constituting discrimination). Remember that there are time limits for filing a grievance so consult your union representative and your collective agreement as soon as possible after the refusal.

If an employee has chosen Option A (12 month surplus status) but will be going on maternity or parental leave, sick leave, or if they become injured or seriously ill during the surplus period, will the 12 month surplus period be suspended or put on hold?

The Public Service Commission has taken the position that the 12 month surplus period cannot be extended or put on hold once it has started. Once again, the PSAC disagrees with this interpretation and believes that, for human rights-related cases, the employer should accommodate by suspending the surplus period.

PSAC recommends similar actions as in questions #1 and #2 above. That is, to request that the 12 month surplus period not begin until they return from leave, or to request that the surplus period be suspended during all or part of their leave on the grounds of accommodation. If the employer refuses to grant either of these requests, employees should request accommodation in order to participate in staffing processes while on leave. This would include, for example, full access from home to the government’s intranet and any job internal postings, special accommodations if required to attend interviews, etc. The Public Service Commission states that such accommodations could include “conducting assessments outside normal working hours or using alternate methods such as video, teleconference, or e-mail”.

If the employer refuses to accommodate an employee in any of the above circumstances, a grievance can be filed against the employer for its failure to meet its duty to accommodate the employee (constituting discrimination).

To conclude, PSAC’s advice is that in situations involving leave without pay, especially maternity or parental leave, employees should speak to their manager as soon as possible in order to work out the accommodation before opting periods or surplus periods begin. Although the PSAC takes the position that WFA time lines can indeed be stopped in situations of accommodation on human rights grounds, it is much easier to deal with these situations and get agreement on an accommodation before leaves are taken and/or WFA time lines start.

What if I am in an acting position or on secondment during a workforce adjustment situation?

Employees are only subject to the Workforce Adjustment Agreement if the WFA situation applies to their substantive position.

Therefore, if you are working in another area and your substantive position is affected by aworkforce adjustment situation, you will be provided with notice and you must be included in any assessment processes and provided with the rights under the WFAA.

If you are acting in a position in another work area and your acting position is affected by aworkforce adjustment situation, you will not be included in the assessment for retention or layoff, since you will be able to return to your substantive position.

Note that an acting employee will not be retained in an acting position in place of an indeterminate employee who is to be laid off. Therefore it is possible that you may have to return to your substantive position before the original end date of the acting assignment.



September 17, 2013