Legal basis and trigger
§ 167 (2) of Social Code Book IX (SGB IX) requires the employer to start workplace reintegration management with employees who have been unfit for work, or partly unfit for work, for more than six weeks within a year, continuously or repeatedly. The aim is to clarify how incapacity for work can be overcome, how renewed incapacity can be prevented and how the job can be kept. The duty applies to all employees, not only severely disabled people, and in every company regardless of its size. What counts is the absences in the previous twelve months, not the calendar year. The cause of the illness does not matter.
Participants
- The employee: the procedure takes place only with their consent and with their participation. They can decline it or end it at any time.
- Works council or staff council; for severely disabled people, also the representative body for severely disabled employees (Schwerbehindertenvertretung).
- A person of trust of the employee's choice, whom the employee can bring in under § 167 (2) sentence 2 SGB IX.
- The occupational physician, where necessary.
- Rehabilitation providers and, for severely disabled people, the integration office (Integrationsamt), if benefits for participation in working life or accompanying help at work come into question.
Process
The documents of the procedure are kept separately from the personnel file. Health data is collected only as far as it is necessary for the procedure and there is a legal basis. Details are in the article BEM: data protection and documentation.
Role of the occupational physician
The occupational physician knows the workplaces and is bound by medical confidentiality. The physician assesses which requirements of the workplace are compatible with the employee's health situation and which adjustments to recommend, without disclosing diagnoses to the employer. In a gradual return to work, the physician can support the workplace-related coordination after the employee has consented. The medical step-by-step plan is agreed with the treating doctors and the benefit providers. The basis is § 3 of the Occupational Safety Act (ASiG), which counts advice on reintegration among the tasks of the occupational physician, and § 167 (2) SGB IX. The article BEM and gradual return to work explains the differences between the two procedures.
Consequences of omitting the procedure
The Act provides no direct sanction if workplace reintegration management is omitted. According to the case law of the Federal Labour Court (Bundesarbeitsgericht; judgment of 10 December 2009, 2 AZR 400/08), it is not a condition for a dismissal to be valid, but an expression of the principle of proportionality. If an employer dismisses for illness-related reasons without having offered the procedure, its burden of presenting the facts becomes heavier. It must show that even a proper procedure would not have produced milder means. The effects must be assessed in each individual case. Rehabilitation providers and integration offices can support employers who introduce reintegration management with premiums or a bonus under § 167 (3) SGB IX.
In practice
A faulty invitation puts the procedure at risk: it leaves out the notice on aims and data or does not make clear that taking part is voluntary. We provide companies with a process for workplace reintegration management with invitation letter, interview guide and documentation, and on request we conduct the meetings together with you. Coordination with treating doctors and rehabilitation providers works regardless of location. We arrange on-site appointments with companies in the Ingolstadt, Munich and Upper Bavaria area. Consultations and meetings are possible nationwide by video.