When can a company integration management program (IMP) be dispensed with?
In practice, an IMP can only be avoided under two constellations:
- the employee rejected an IMP and no further relevant absences occurred within a year or
- an IMP objectively proved to be ineffective.
Rejection by the employee: It is often unclear whether the employee agrees to an IMP or not, since there is frequently no reaction. However, from this it cannot be inferred that the employee does not agree to an IMP. Consequently, the employer should ask the employee in the letter of invitation to an IMP (see part 1) to reply within a certain period and it should also include the information that after expiry of the deadline the employer will assume that the employee does not agree to an IMP.
If the employee declares on the occasion of an offer for an IMP that he would not be interested in it in future either, the employer only needs to offer it again if the employee declares that he would now agree to it (LAG Berlin, verdict of 11/13/2015 - 9 Sa 1297/15).
Objective ineffectiveness: Case law has set the bar high for establishing objective ineffectiveness. For example, the employer must lay out, and if necessary, demonstrate, the objective ineffectiveness. For this purpose it must make a comprehensive and detailed submission why - also after reasonable reorganization measures - neither further deployment at the previous workplace, nor its adjustment or alteration to the handicap are possible and the employee cannot be deployed at another workplace with a different activity. It must therefore be possible to demonstrate why an IMP would under no circumstances have been able to contribute to the prevention of renewed illness periods and to preserving the employment. If it is possible that an IMP would have produced a positive result, the employer must be prepared to be accused of having issued a premature dismissal (LAG Rhineland-Palatinate, verdict of 12/10/2015 - 5 Sa 168/15). However, if the employer does not know the reasons for the illness, it can restrict itself to referring to the ineffectiveness of the statutory aids provided or benefits of the rehabilitation organization. If the employee has been granted a pension on account of full invalidity within the meaning of § 43 (2) SGB VI (Book VI of the German Social Security Code), this in itself still does not prove the objective ineffectiveness of an IMP. It is also not enough in itself when the employee denies a connection between his complaints and the specific workplace (BAG, verdict of 07/16/2015 - 2 AZR, 15/15). Nevertheless - especially in the case of bigger corporate organizations - demonstrating the objective ineffectiveness of an IMP is in practice virtually impossible.
Consequently, to be on the safe side, employers should always offer an IMP if the preconditions exist.
When is an IMP deemed to have failed?
An IMP is deemed to have failed if the employee rejects the IMP as a whole or the measures proposed in it despite being notified of an impending dismissal, meaning the reintegration cannot be carried out.
An IMP can also be deemed to have failed if the absences of the employee continue to be high, i.e. no significant improvement in the situation has occurred.
However, a formal declaration by the employee or employer that an IMP has failed is unnecessary.
Co-determination of the Works Council
If the company has a Works Council, the participation of the latter in the IMP is mandatory. It can also demand the conduct of an IMP itself. The Works Council is entitled as part of its statutory right of inspection to information on the name and the periods of sickness of the party concerned without the latter's consent being necessary.
In addition, co-determination rights need to be considered under § 87 (1) no. 1 for general procedural questions, no. 6 in relation to the use and processing of health data and under no. 7 regarding the organization of occupational health protection. However, the latter only covers the establishment of procedural principles to clarify options regarding how the invalidity of an employee can be overcome and with what services or aids renewed invalidity can be prevented (BAG, finding of 03/22/2016 - 1 ABR 14/14).
Moreover, voluntary company agreements regarding IMPs exist in many companies.
Consequences of failure to carry out an IMP or improperly implemented IMP
Failure to conduct an IMP or an improperly implemented IMP can result in dismissal on the grounds of illness being invalid. Claims to damages on the part of the employee concerned are also conceivable if, for example, in the event of unfavorable further employment he suffers a loss of earnings as a result.
However, the employer does not commit any criminal or administrative offense if it disregards the guidelines of § 84 (2) SGB IX.
Preventive action – avoid trouble
To avoid considerable periods of illness, employers should among other things carefully carry out a hazard assessment of every workplace to identify and prevent any health hazards in good time.
Moreover, regular checking of workplaces re their appropriateness to the disability - also by operational reorganization - is an integral part of a preventive, medium-term personnel policy. In the final analysis, involving the representative bodies in the company early on is advisable (especially the Works Council). Moreover, a (voluntary) company agreement can manage potential IMP procedures.