If employees are continuously or repeatedly ill for more than six weeks within a year, a company integration management ("bEM") should be carried out on the initiative of employers. As part of this process, the aim is to work with the employee to find ways of overcoming the incapacity to work as far as possible, and to identify benefits or assistance that can be used to prevent a recurrence of the incapacity to work and to preserve the employee's job.
Even under the previous legal situation, the group of participants in such process was not exactly small. The following came into consideration:
- Employer representative
- Works council/staff council (where applicable)
- Representative for severely handicapped persons (where available)
- Company physicians (if required)
- Rehabilitation agency (if participation benefits are being considered)
- Integration/Inclusion Office (for severely disabled employees)
Since June 2021, employees have also had the option of consulting a trusted third party when conducting a bEM. Since it is the responsibility of employers to properly initiate and carry out the bEM procedure, a number of questions naturally arise:
- Who may be involved as a trusted third party?
Any person designated by the employee, i.e., both internal (e.g., supervisors, colleagues) and external (e.g., physicians, relatives, attorneys, friends, therapists, pastoral counselors, etc.) persons.
- In the case of in-house persons: Must the remuneration continue to be paid?
The legislator has not made any provision and the explanatory memorandum to the statute does not provide any guidance here either. It is certainly debatable whether participation in a bEM procedure as a person of trust at the request of other employees can actually still be qualified as work performance. A continued payment of the remuneration on the basis of the legal regulations should also not necessarily be considered, since an internal person has no legal or personal obligation to participate as a confidant in a bEM procedure.
However, it would certainly make sense to promise continued payment of the remuneration when selecting an internal person in order to include an internal person as a confidant if possible. The selection of an internal person would have the following advantages compared to a person from outside the company:
- Existing obligation to maintain confidentiality about company and business secrets.
- Knowledge about work processes, workplaces and the business/company
- Less emotionality than with the involvement of relatives/friends
- Less potential for conflict than with the involvement of lawyers
- For persons external to the company: Does the employer have to pay any fees?
Here, too, the legislator is silent. However, in the absence of an explicit cost regulation, any costs (e.g. fees) for a person from outside the company should be borne by the employee.
- How is the trusted person appointed?
Since sensitive health data is (or can be) processed in the course of the bEM procedure, it is certainly sensible to have the employees explicitly confirm in writing who the person of trust is to be and agree that this person will receive all documents and information from the bEM procedure.
- What do employers need to do now?
In any case, an adaption of the documents with which employees are invited to a bEM meeting and informed about the bEM procedure is necessary. Employees must be informed of the optional possibility of involving a person of trust. At best, this information should already be provided with the invitation to the bEM meeting.
If there are company or service agreements on the bEM procedure, these may have to be adapted accordingly.
Furthermore, printed forms can already be prepared for the further course of the bEM procedure on which employees can name their trusted third party (if they have requested this). In addition, a confidentiality agreement should be considered if employees nominate an external person as a confidant, especially if confidential internal company information could be discussed in the course of the bEM procedure (e.g. work or production processes).