If an employee is unable to work for more than six weeks in total within one year, either continuously or repeatedly, the employer is obliged under Section 167 (2) of SGB IX to implement a so-called workplace integration management (bEM) program.
The law does not attach any direct legal consequences to the implementation or non-implementation of the bEM program. However, case law assumes that in the event of dismissal due to illness without prior implementation of a bEM, the balance of interests will be to the detriment of the employer, unless the employer can prove that implementation would have been useless in the specific case and that it would not have been possible to adapt the workplace to the employee's condition or to transfer the employee, which is (almost) impossible in practice.
Against this background and due to the possibility of overcoming incapacity for work and retaining qualified and trained employees in the company in the long term by adapting their workplace to their condition, employers should offer their sick employees a BEM if the requirements are met.
The BEM process can be roughly outlined as follows:
1. The invitation letter
A bEM can only be carried out with the employee's consent. It begins with an invitation to the employee, in which the employee is informed of the objectives of the bEM, its voluntary nature, the possibility of contributing their own suggestions, and the possibility of consulting a trusted representative. The invitation letter must also state that the employee representatives will only be involved if the employee agrees to this. Finally, it must include information on the type and scope of the data collected and used for the procedure.
Although there is no specific legal requirement regarding the form of the invitation letter, it is advisable, not least for documentation purposes, to send the invitation containing the mandatory information to the employee in writing and to have them confirm that they have taken note of it.
Since a bEM can be considered flawed by the courts on the basis of an incomplete invitation letter alone, particular care is required here.
2. The consultation and the search process
Usually, during an initial consultation between the employer, employee, and, if applicable, other parties involved (such as the works council, the representative for disabled employees, the representative, or external parties) discuss the limitations on performance, the current workplace situation, and possible operational measures to restore the employee's ability to work, such as redesigning the workplace or transferring the employee. The employee's suggestions must also be taken into account. During or after this meeting, an action plan should be drawn up as a basis for subsequent implementation.
The bEM is already completed at this stage if the parties involved have not found any effective preventive measures and agree that there are no further approaches for this.
In any subsequent termination process, the employer fulfills its burden of proof by pointing out the negative outcome of the bEM and arguing that there are no other employment opportunities.
3. The implementation phase
If promising measures were identified during the discussion, these are implemented in the implementation phase. The measures are effective if they serve to reintegrate the sick employee into everyday working life. At the end of the implementation phase, the results are reviewed with all parties involved.
The bEM procedure ends when the measures to retain the employee's job have been implemented.
If, after completing a bEM, an employee is again unable to work for six weeks within a year, the employer must carry out another bEM in accordance with the new ruling of the Federal Labor Court (BAG). A fully completed BEM procedure does not therefore continue in such a way that a new BEM must be carried out only after a certain period of time has elapsed. If the employer considers dismissal on grounds of illness after the completion of a BEM, this should therefore be announced promptly after its completion.