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What are the employer obligations when reintegrating severely disabled workers in Germany?

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Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
Severely disabled people are entitled to return to employment, in accordance with a step-by-step reintegration plan. However, a recent court case confirms that an employer may reject a reintegration plan if it is not reasonable, or if it would pose the risk of further harm to the worker.  

Severely disabled people are entitled to return to employment, with accommodations that allow them to use and develop their skills and knowledge as fully as possible. To facilitate this, employers may be obliged to participate in step-by-step reintegration measures, in order to employ the severely disabled person in accordance with a reintegration plan from the employee’s treating doctor.

If the employer does not fulfil this obligation, there is a risk of paying compensation in court. So, under what conditions can employers refuse reintegration? A recent judgment from the Federal Labour Court (Bundesarbeitsgericht, or BAG) answers this question.

What was the case about?

The severely disabled plaintiff was employed by the city as a technical employee, and was unable to work for about a year and a half. In the meantime, a company medical examination had taken place. The company doctor recommended the plaintiff’s gradual reintegration. However, the doctor pointed out several specific restrictions in the work to be performed.

The reintegration plan finally drawn up by the plaintiff’s doctor provided for a gradual reintegration into working life. However, the reintegration plan did not contain information about any restrictions in work activities. The city subsequently rejected the reintegration plan. It was not possible for the plaintiff to perform work in his previous area of ​​responsibility because of the restrictions listed in the company medical assessment.

The lower Labour Court dismissed the lawsuit. While the Labour Court of Appeal upheld an appeal, the defendant was ultimately successful in its further appeal to BAG, and the city was not obliged to pay damages.

Obligation to reintegrate severely disabled people

When it comes to reintegration, a distinction must be made between disabled employees and severely disabled employees. In principle, employers are not required to participate in the gradual reintegration of disabled employees into working life; in particular, such a requirement does not result from the existing employment relationship. Rather, the reintegration relationship is a contractual relationship of its own kind, the foundation of which requires an agreement between employer and employee. The principle of voluntary participation applies to both sides.

However, the situation is different when it comes to the step-by-step reintegration of a severely disabled employee into working life. In such a case, the employer may be obliged to participate in a step-by-step reintegration that works in accordance with a doctor’s reintegration plan.

Refusal of reintegration in special circumstances

So far, this obligation is limited by a requirement of reasonableness. If reintegration is not reasonable for the employer or is associated with disproportionate expenses, employers can refuse.

The BAG has also given employers a right to refuse if ‘special circumstances’ preclude reintegration, in particular, if it can be assumed that gradual reintegration could have negative health consequences for the employee. In the case decided by BAG, there was reasonable concern based on the assessment of the company doctor that the plaintiff’s state of health would not permit employment in accordance with this reintegration plan. The well-founded doubts about the suitability of the reintegration plan could not be cleared up before the plan was scheduled to start, and therefore represented a ‘special circumstance’.

Conclusion and practical advice

In the case of requests from employees for gradual reintegration, employers must have the specific circumstances of the individual case checked carefully before making a decision. Employers should also pay attention to whether the gradual reintegration into working life is likely to have adverse health consequences for the employee. A corresponding assessment from a company doctor can be of crucial importance.

Dr Sebastian Verstege
Attorney - Germany
Kliemt.HR Lawyers