Update on workplace integration (bEM)

Employers are required to offer a Workplace Integration Management Programme (bEM) if an employee has been unable to work for more than six weeks within a year, regardless of the reason (Section 167(2) SGB IX).The aim is to work with the employee to develop solutions to restore their ability to work and prevent future illness.

A recent ruling by the Baden-Württemberg Regional Labour Court (dated 14 January 2025 - Ref. 15 Sa 22/24) has clarified the requirements for careful and legally compliant implementation of the procedure.

Background to the ruling

In the case in question, a long-term employee had experienced repeated absences over several years due to illness. The employer commissioned an external service provider to carry out the bEM and invited the employee to an information meeting. Although personal health data was disclosed during the meeting, no actual bEM meeting took place. A few months later, the employer dismissed the employee on grounds of illness.

Requirements for effective implementation

The court emphasised that employers must be able to demonstrate that no less severe measures could have been taken to avoid dismissal in order for the bEM to be carried out properly (Section 1 (2) KSchG). The decision underlines the importance of a structured and transparent approach in the bEM process.

In order for the bEM to be carried out in a legally compliant and effective manner, employers must pay particular attention to the following points:

• Voluntary participation: The procedure is voluntary for the employee. However, the employer must actively offer a meeting and point out the possibility of involving a trusted representative of the employee's choice.
• Clear communication: The offer letter must be clearly worded. It must be clearly recognisable that it is a bEM offer. The objectives of the bEM should also be presented transparently.
• Data protection: As sensitive health data is regularly processed within the framework of the bEM, comprehensive data protection information is essential. This includes:
  • Information about what data is collected and for what purpose,
  • clarification that only necessary data will be processed, and
  • information on how and by whom the data will be used.

Generalised or vague references to the processing of sensitive data are not sufficient; the data collected and stored by the employer must be communicated precisely.

• Documentation and verifiability: A structured approach - for example, using a checklist - helps to make the process transparent and avoid potential errors.

Recommended action

Termination due to illness requires a properly conducted bEM. Employers should therefore:

• Communicate early and transparently,
• carefully implement the legal requirements, and
• ensure that the process is properly documented.

Even if an employee declines a bEM offer, it is crucial that the employer has fulfilled its information obligations completely and comprehensively.