The law obliges employers to offer occupational re-integration management to all employees who have been continuously or repeatedly unable to work for more than six weeks within one year, according to § 167 para. 2 of the German Social Code IX (SGB IX). The size of the company is irrelevant. It must be offered in small, medium, and large companies. The legislator does not specify an explicit concept for the implementation of re-integration management.
Re-integration management must also be carried out from the perspective of labour law. This is because the conclusion of an employment contract gives rise to a secondary obligation on the part of the employer to re-integrate employees who have been on long-term sick leave.
The employee is free to accept or reject the offer of a re-integration procedure. Rejecting the re-integration procedure must not have any negative consequences for the employee. Nevertheless, it must be noted that in the event of an action for protection against dismissal due to dismissal for personal reasons, the employer can argue that the employee has rejected offers to restore his or her workability.
As personal data is processed in the context of re-integration management, appropriate data protection is indispensable. General legal regulations on data protection are set out in the European General Data Protection Regulation (GDPR/DSGVO). The GDPR came into force on 24 May 2016. It has been applicable since 24 June 2018 after a two-year transition period. Further regulations are set out in the German Federal Data Protection Act (BDSG). Before personal data can be collected in the context of a re-integration management, the consent of the person concerned must be obtained according to § 4 para. 1 of the BDSG.
Further regulations are explained in §§ 32 to 37 of the BDSG. § 32 is particularly relevant to re-integration management, stating that employees must be informed as soon as personal data is collected. § 35 para. 2 is also relevant. This section states that data may not be kept longer than necessary. As long as the data serves the purpose of proof, it may be kept. After a reasonable period of time, however, they must be destroyed. A consistent regulation can be laid down in a company agreement. It must also be ensured that the files regarding the re-integration procedure are not kept together with the personnel file.
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