To whom does company integration management apply?
According to section 84 (2) of the German Social Code, Book IX, integration management must be carried out for all employees. The precondition is that the employee has been unable to work for more than six weeks within a year (not a calendar year!). This applies equally to both uninterrupted and interrupted periods, regardless of the cause of the ill health. Not all periods of ill health have to be proven by producing a medical certificate.
The employer's obligation to take the initiative
It is the employer who must initiate measures for integration management. In a possible lawsuit the employer must be able to show and prove that it has duly initiated and implemented integration management. It is therefore advisable to have a clear process in place (e.g. introducing an IT-supported follow-up system, in order to detect relevant absences due to ill health.).
Integration management is initiated by the employer sending an invitation to the employee in question. In this invitation, the employer notify inform the employee that:
- it wishes to carry out measures for company integration management with the employee
- the employee, however, is not obliged to cooperate in such measures
- it may be necessary for the employee to provide further details concerning the cause of ill health and that the employee's physicians may have to be released from their duty of secrecy and also that the company's in-house physician may be consulted
- the in-house physician and – in the case of the severely disabled – any representative of the severely disabled has to be involved
- the in-house physician and, if applicable, the representative of the severely disabled will only take part in the discussion with the employee's consent
- what data and how much data may have to be collected and stored and
- that the aim of integration management is to reintegrate the employee into the company's operations and to avoid further illnesses in the future and therefore to ultimately protect the employee's job.
How is integration management carried out?
The law does not prescribe any specific way to implement integration management. Some methods that particularly come into consideration are:
- The (joint) inspection of a workplace by the employer, the employee and any persons involved
- A self-appraisal by the employee in relation to the working conditions
- The assessment of the job profile, workplace analysis
- The performance of a risk analysis in accordance with section 5 of the Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG) and/or
- The joint discussion of the results arrived at.
Among the resulting measures that come into consideration are the reorganization of the workplace, continuing employment at another workplace more suitable to the specific ailment or the offer of possibly taking specific courses of treatment in order to reduce periods of absence. Another possibility are measures to promote health at the workplace. The reintegration of employees after an extended period of illness is often carried out according to the "Hamburg model“. This involves a gradual increase in the number of hours the employee works within the framework of an integration plan and in agreement with a physician, so that the employee is gradually reintegrated into the operational processes and becomes accustomed to their tasks and their full number of working hours. The employer and the health insurance provider must agree to this measure.
The employee is under no obligation to agree to participate in an integration management process. If employees refuse to give their consent, they will, however, not be able to argue in a later lawsuit that the employer failed to take less harsh measures before resorting to dismissal on grounds of ill health. In such a case, the employer should therefore carefully consider whether dismissal on grounds of ill health might not be an option that it wishes to take straight away (to the extent that this is intended in the first place and also effective).
Integration management – year after year?
If the employer decides against dismissal on grounds of ill health or if such a dismissal does not (yet) come into consideration for other reasons, the question arises of whether the employer can invite the employee to take part in company integration management only a single time.
In a recent decision (judgment of June 3, 2015 – 6 Sa 396/14) the Regional Labor Court of Schleswig-Holstein ruled that the employer has to offer measures for integration management yet again even if the employee has already refused such measures in the past, but if absences of at least six weeks in length have accumulated within the subsequent 365 days. According to the reasoning of the court, the refusal to take part in integration management process in the past is only effective until absences of this length have once again accumulated within a maximum period of 365 days. New periods of being unable to work could alter the employee's attitude to integration measures and the reasons for rejecting such measures might be out of date or no longer apply.
This means that if relevant absences accumulate again within 365 days, the employer must again offer to carry out measures for integration management.
Some practical tips:
You should carefully monitor and constantly check the times when your employees are unable to work. You should set particular store by duly inviting such employees to take part in measures for integration management.
How integration management can be avoided, whether the works council has any co-determination rights and what consequences employers have to fear will be explained in the second part of this article.