Operational integration management (hereinafter referred to as "bEM") plays a significant role in labor law practice (not in company practice!), particularly in connection with dismissals due to illness. This is because any error here can, in the worst case, lead to the invalidity of the termination.
1. Significance of occupational integration management with regard to the effectiveness of a dismissal
Section 167 (2) SGB IX requires employers to offer employees who have been incapacitated for work for more than six weeks in the last 12 months a bEM. The offer or even the implementation of occupational integration management is not a formal prerequisite for the effectiveness of a termination. However, the requirements imposed by the Federal Labor Court on the burden of proof for employers are so high that at least the attempt to carry out a bEM is urgently recommended.
In addition, it is strongly recommended that the EMR be carried out close in time to the notice of termination. Ideally, no more than one month should elapse between the last EMR and the notice of termination.
Thus it remains to be stated: Employers who are considering giving notice of termination due to illness should at least have attempted to carry out a proper bEM before giving notice of termination.
2. What has to be considered when implementing the company integration management?
When carrying out the bEM, not only the legal requirements from § 167 para. 2 SGB IX must be taken into account, but also the strict requirements of employee data protection.
The law initially stipulates that occupational integration management may only be carried out with the consent of the employee concerned. The employee must therefore be asked whether he or she agrees at all before the bEM begins. This is usually done in the invitation letter (see below / you can also find a comprehensive sample here). Since the law also requires that the employee be informed about the objectives and the data processing, the invitation letter is also a good source of information here. This is because it also allows the employer to document at the same time that it has complied with the duty to inform required by law.
This leaves us with one thing to note: A comprehensive invitation and information letter(available here) lays the foundation for legally compliant operational integration management.
3. Participation of the works council
Many parts of a procedure for implementing company integration management are subject to enforceable co-determination. For example, procedural issues are usually subject to co-determination under section 87 (1) no. 1 BetrVG (order of the company). The use and processing of health data will often be subject to co-determination under Section 87 (1) No. 6 BetrVG (technical monitoring equipment). Finally, co-determination of the works council can be triggered by Section 87 (1) No. 7 BetrVG (health protection). However, numerous areas of regulation in "typical" works agreements on company integration management are subject to voluntary co-determination alone. In practice, therefore, most works agreements regulate both areas that are subject to enforceable co-determination and those that are merely subject to voluntary co-determination. The distinction is important for the question of enforceability via a conciliation body.
4. Pattern
Below you will find the sample invitation letter and the corresponding reply letter from the employee. Both documents can also be downloaded here. Please note that the sample does not replace legal advice in individual cases.
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Sample invitation letter company integration management
Invitation to carry out company integration management (Section 167 (2) SGB IX)
Dear Mr/Mrs xxx,
you were incapacitated for work for more than six weeks in total within the last 12 months. You therefore belong to the group of persons for whom occupational integration management (bEM) is provided for in Section 167 (2) sentence 3 SGB IX.
The aim of bEM is to clarify, with the involvement of all parties concerned, how your incapacity for work can be overcome as far as possible and what benefits or assistance can be provided to prevent renewed incapacity for work and maintain your employment relationship. The bEM is therefore intended in particular to determine the health restrictions that have led to the absences from work to date and to find out whether and, if so, what possibilities exist for reducing them in the future by making certain changes in order to avoid dismissal. In other words, this is about the basis for your continued employment.
The bEM is open-ended, so you are welcome to contribute your own suggestions to the process at any time. The bEM is also voluntary for you and depends on your consent. You can revoke your consent at any time; in this case, the bEM will not be carried out or continued. In addition to you, a representative of the employer will take part in the bEM. A member of the works council will also take part, provided you do not object.
During the bEM interview and the subsequent implementation of integration measures as part of an individual action plan, the employer will collect and use the following personal data as necessary:
- Personnel data, in particular: Names, date of birth, length of employment, severe disability/equality, marital status, etc.,
- Data on absenteeism, in particular: Number and distribution of days of incapacity to work in the last twelve months and in previous periods, accidents at work,
- Health data, in particular: existing benefit potential, health or severe disability-related benefit restrictions, health status, cures, curative treatments, diagnoses, causes of illness, medical certificates,
- Activity data: in particular, activity performed, workplace and activity analyses, risk assessments, occupational health and safety data, professional qualifications,
- Process data: in particular, progress and results of bEM procedures, of work trials and of measures for gradual reintegration as well as other workplace-related measures, in-house implementation, adjustments to the workplace or working conditions.
The data will be treated confidentially and in compliance with data protection regulations and will only be collected and used for the purposes stated below:
- For advice on how to overcome the incapacity for work as far as possible and with what benefits or assistance renewed incapacity for work can be prevented.
- To determine what job-related actions can be taken, to summarize those actions in an action plan, and to implement that action plan.
- To determine the extent to which the action plan has been implemented and the extent to which the bEM has been successful.
Only with your prior consent will third parties (e.g. rehabilitation providers) be involved in the bEM, to whom your data will be passed on in this case, insofar as this is necessary for the fulfillment of the tasks of these third parties.
The legal basis for the processing of your personal data within the framework of the bEM is § 26 para. 1, 3 in conjunction with § 167 para. § 167 para. 2 SGB IX.
As a rule, the data will be deleted within six months after completion of the bEM, unless their further processing is necessary for the purposes of the employment relationship or the employer is obligated or entitled to store them for a longer period due to statutory provisions. You have a right to information about the personal data stored by the employer and, if the respective legal requirements are met, a right to provision, correction and deletion of the data and to restriction of processing. You can also contact the competent supervisory authority with complaints.
Which further data must be collected in the course of a bEM depends on the individual case. However, you will be able to specify again for each individual phase of bEM which data collection and use you agree to and which you do not.
We will store all health data collected in connection with the bEM exclusively in a separate supplementary file to the personnel file and also electronically. This data can only be viewed by the persons involved in the bEM process. These persons are obligated to maintain data secrecy. In addition, the Works Council has statutory rights to inspect the data.
We suggest the following three dates for the first bEM meeting, each in [description location]:
- [date, time]
- [date, time]
- [date, time]
If you wish to hold a bEM meeting but are unable to attend any of the appointments offered, please provide alternative suggestions in the response fields included in this letter.
You are, of course, not obligated to provide information about the cause of your inability to work or medical statements in this regard during our interview.
Finally, I would like to point out that so far we have had no indication of any existing severe disability or equality. We therefore currently assume that we do not need to involve the representative body for severely disabled persons that has been set up at our company or the local integration office. If this assumption is not correct, please inform us by submitting the relevant documents. Please also let us know whether, in your opinion, benefits for participation or accompanying assistance in working life pursuant to Section 167 (2) sentence 4, Section 49 (1) SGB IX come into consideration. In this case, we would - with your consent - involve the Integration Office in the appointments. Pursuant to Section 49 (1) of Book IX of the Social Code, the necessary services are provided for participation in working life in order to maintain, improve, establish or restore the earning capacity of people with disabilities or people threatened by disabilities in accordance with their capabilities and to ensure their participation in working life for as long as possible.
Please let us know by filling in and signing the reply fields in the enclosed reply letter by
[Date 14 days after expected receipt of letter].
whether you would like to participate in bEM and which dates are suitable for you. We are always available to answer any questions you may have.
With kind regards
_______________________ _____________________________
Place, date Signature
Response letter beM
__________________________________________________________________________
[name, personnel number]
I have received the invitation letter for the implementation of a company integration management (bEM).
Please mark each with a cross:
- With the implementation of the bEM I am
O agree
O disagree.
- The participation of a representative of the works council
O I agree
O I do not agree.
- The interview date(s) on
O [date, time]
O [date, time]
O [date, time]
is/are suitable for me.
or
O none of the mentioned meeting dates is convenient for me, so I suggest ......................at.................hr as an alternative.
- I would like to suggest other stakeholders.
O no
O yes, the following individuals (please provide name and function/type of personal relationship):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
________________________ ________________________
Place, date Signature
