Corporate integration management ("bEM"): What current case law and new legal regulations must be observed?
If employees are incapacitated for work continuously or repeatedly for more than six weeks within a year, the employer must offer the affected employees the performance of a corporate integration management ("bEM") procedure. The aim of this open-ended procedure is to preserve the job by overcoming the inability to work and preventing a recurrence of the illness.
But to what extent is an employee entitled to a corporate integration management process? And is there an "expiration date" after such process has been performed? The Federal Labor Court has created legal clarity regarding the existing statutory provisions with two landmark decisions: Federal Labor Court, decision dated September 7, 2021 - 9 AZR 571/20 and Federal Labor Court, decision dated November 18, 2021 - 2 AZR 138/21.
In its decision of September 7, 2021 (Case No. 9 AZR 571/20), the Federal Labor Court (Bundesarbeitsgericht – “BAG”) determined that employees have no individual right to initiate and carry out a corporate integration management process. In addition, in its decision of November 18, 2021 (Case No. 2 AZR 138/21), the BAG ruled that, after completion of a bEM and in case of renewed illness, even within one year, a new bEM process must be carried out as it is not clear from the law’s wording that the process must only be performed once per year.
1. Employees do not have a right to bEM
In the case underlying the BAG's decision of September 7, 2021, a severely disabled employee who had been employed by a municipality since the summer of 2000 was on sick leave for a total of 122 days in 2018. In the period from January to August 2019, he was absent from work on 86 days due to incapacity for work. The mayor of the municipality, acting as employer, rejected the employee's application for the performance of a bEM procedure submitted on August 2, 2019. He justified his rejection by stating that the frequent and prolonged illnesses were not directly related to the activities assigned to the employee.
In the subsequent proceedings, the employee filed a lawsuit for the performance of a bEM procedure and took the view that the employer's general duty of care gave rise to an individual claim on the part of the employee. The defendant employer countered that the statutory provision (Art. 167 (2) SGB IX (German Social Code IX)) does not provide for a claim by the employee and merely grants an employer a right of initiative.
The Nuremberg Regional Labor Court (LAG) overturned the decision of the Würzburg Labor Court, which had upheld the action, and declared that there was no enforceable claim even if the requirements for the implementation of a bEM were met. It based its decision on the fact that the wording of the law is directed at the employer and obligates the employer, together with the responsible interest groups and the affected person, to carry out a bEM procedure. Otherwise, the legislator would have expressly stated that employees could demand a bEM procedure’s performance. Even taking into account the requirement of consideration and the employer's duty of care, there is no deviating interpretation. The BAG confirmed the legal opinion of the Nuremberg Regional Labor Court and decided, based on a detailed interpretation of the norm, that an employee does not have a right to the implementation of a bEM procedure.
2. A completed bEM does not have an expiration date
In its decision of November 18, 2021 (Case No. 2 AZR 138/21), the BAG had to assess, among other things, whether an “expiration date” existed after the completion of a bEM. A production worker who had been employed by the defendant since 2001 was unable to perform his duties on 40 working days in 2017, 61 working days in 2018 and 103 working days in 2019 due to existing incapacity to work. In early March 2019, the defendant employer had held a meeting with the employee to conduct a bEM procedure. The employee fell ill again for 79 working days in the further course of the year. After a notice of termination was issued with reference to his state of health, the employee filed an action for protection against dismissal and won at the highest court.
The judges of the BAG stated that the defendant was not able to demonstrate that a (further) bEM would not have helped to identify or develop milder means than the termination of the employment relationship. The defendant could not refer to the fact that a bEM had already been carried out within one year. The wording of the law specifies the factual requirements of the standard and refers only to the reference period of the incapacity for work. The bEM’s purpose is to secure the employment relationship as permanently as possible by means of suitable preventive health measures. The employer already has an immediate obligation to perform a bEM procedure if the period of absence exceeds six weeks. Any further delay would not eliminate the risk to the continued existence and would rather lead to further absences. Moreover, in a previous and completed bEM procedure, only illnesses and operational processes and conditions that were causal up to that point can be taken into account. However, causes of illness and operational circumstances can change after the procedure has been carried out, so that a new procedure would have had to be initiated, as the law cannot be interpreted to provide for an “expiration date” after one year nor can such expiration date be derived from the provision’s meaning and purpose.
3. Employees are allowed to consult any person of trust
Under new legislation, employees invited to a bEM meeting have been allowed to bring in a person of trust of their choice since January 1, 2022. This can also be a lawyer. The employer’s consent is no longer required.
As an employer, you should immediately offer your employees the opportunity to take part in a bEM procedure, even if there is no legal right to such procedure, if your employees are absent from work for more than six weeks within a year due to incapacity to work. There is no legal entitlement to this. Otherwise, however, a dismissal based on the periods of absence may be declared disproportionate and thus invalid due to the existence of milder remedies. After completion of a bEM procedure, the same principle applies as before the procedure: In the event of a repeated incapacity to work lasting longer than six weeks (within one year), the initiation of a new bEM procedure is necessary in order to comply with the principle of preventive health care in order to retain the job.