Company integration management (BEM program): once, twice, three times?

Company integration management and dismissals due to illness

Section 167 (2) sentence 1 German Social Code Book IX (SGB IX) stipulates that company integration management must be carried out if employees are unfit for work for more than 6 weeks within a 12-month period.

Company integration management is not a legal requirement for an effective dismissal due to illness. However, dismissal due to illness (such as for personal reasons) without company integration management or a corresponding offer is regarded as unreasonable and is, therefore, invalid.

Yet are employers required to perform multiple BEM programs in order to be able to dismiss an employee due to illness if they fall ill multiple times over the course of a year?

Employee on permanent sick leave before the Federal Labor Court

The Federal Labor Court (BAG) addressed one such case: In February 2019, an employer conducted company integration management with an employee who had been ill for longer periods for years. The employee discontinued the company integration management at the beginning of March 2019.

In the following months, the man became unfit for work again for almost 80 days. However, he was not dismissed due to illness until March 2020 – without the employer having offered him company integration management again.

The man took legal action against this dismissal and argued that he should have at least been offered further company integration management. As such, the dismissal was disproportionate, socially unjustified and, therefore, ineffective.

Federal Labor Court: Company integration management also multiple times in one year

The Federal Labor Court took the same view and ruled that although Section 167 German Social Code Book IX (SGB IX) could be interpreted in such a way that only one company integration management within one year is required, the purpose of the standard is to provide suitable preventative health measures to safeguard the employment relationship over the long term. For this reason, an employer is also required to offer company integration management again if the corresponding requirements are met again within twelve months of completed/rejected company integration management. Once company integration management has been performed or offered, it does not have a legal “best-before date” of one year.

As such, if an employee suffers multiple long-term illnesses, multiple BEM programs may be necessary within a year to justify dismissal due to illness.

At the same time, the court also restricted the scope of this decision stating that two BEM programs do not have to be carried out at the same time if the conditions set forth in Section 167 German Social Code Book IX (SGB IX) are fulfilled again during a BEM that has not yet been completed.

Important for AG: When is a company integration management concluded?

That is why it is important for employers to know when company integration management has been completed. According to this ruling, this simply depends on whether a further company integration management must be offered before dismissal due to illness is possible.

The Federal Labor Court has also commented on this. Company integration management has been completed when

• the employee and employer agree that is has,
• the employee no longer wants to continue or terminates the program or
• the parties involved no longer cooperate and the employer unsuccessfully sets a deadline for cooperation.

Monitor the situation

In this respect, it is important for employers to monitor the situation if employees repeatedly fall ill for long periods:

If the conditions for dismissal due to illness are met, it is important not to miss the right moment and to issue notice of dismissal to a person on long-term sick leave promptly after company integration management and before the next company integration management becomes necessary in the event of another long-term illness.