Management Liability in WHP

What WHP duties does company management have — and what happens if they're violated?

Note: this reflects German law. Under ArbSchG § 3, management is personally responsible for risk assessments, BEM offers (SGB IX § 167), and safe work design. Violations risk fines up to €30,000 (ArbSchG § 25, if an order of the supervisory authority is not implemented), recourse claims, and reputational damage.

Management's WHP duties at a glance

Duty	Legal basis	Sanction for violation
Risk assessment (incl. psychological strain)	ArbSchG § 5	Fine up to €30,000 (ArbSchG § 25) if an order of the supervisory authority is not implemented
BEM offer after more than six weeks of sick leave within twelve months	SGB IX § 167 (2)	Extended burden of presentation and proof for a health-related dismissal (BAG 2 AZR 755/13)
Establish ASA (occupational safety committee) with more than 20 employees	ASiG § 11	Fine up to €25,000 (ASiG § 20) if an order of the authority is not followed
Document organizational duty / delegation	OWiG § 130	Fine up to €1 million for breach of supervisory duty
Conduct and document safety briefings	ArbSchG § 12	Fine if an order of the supervisory authority is not implemented (ArbSchG § 25); recourse risk in case of accident

What must management do personally — and what can it delegate?

Under German law (ArbSchG), the Occupational Health and Safety Act applies to employers — for corporations, that means management personally. The duty is not merely to “enable” workplace health promotion (WHP), but to actively organize it: commissioning risk assessments, documenting results, implementing measures, and monitoring their effectiveness (PDCA cycle per ArbSchG § 3 (1)).

Execution can be delegated — responsibility cannot. Anyone who transfers occupational safety tasks to managers must name the delegates in writing, provide them the necessary resources and authority, and monitor their work. Without oversight, management remains liable under OWiG § 130 despite formal delegation.

BEM (workplace reintegration management) is mandatory as soon as employees have been unable to work for more than six weeks within twelve months, continuously or repeatedly — regardless of company size. A missing BEM offer does not automatically make a health-related termination invalid, but it makes it easy to challenge before a German labor court: the employer then has to show and prove that even a BEM process would not have prevented the termination (Federal Labor Court, 20 Nov 2014 – 2 AZR 755/13).

What liability risks does management face in concrete terms?

A fine under ArbSchG § 25 of up to €30,000 applies if the employer does not implement an enforceable order of the supervisory authority; up to €5,000 for violating an occupational safety ordinance. A missing risk assessment is not in itself an administrative offence — the authority issues an order first. Anyone who persistently repeats violations intentionally, or thereby endangers the life or health of employees, commits a criminal offence (ArbSchG § 26). The trade association (Berufsgenossenschaft) can also levy contribution surcharges based on the number, severity, or cost of workplace accidents (SGB VII § 162).

Recourse claims threaten after workplace accidents or occupational illnesses if management acted with gross negligence (SGB VII § 110). The recourse can be directed at the responsible person — including managing directors personally.

Reputational damage is the hardest risk to quantify: public employer reviews (Kununu, LinkedIn) react sensitively to disclosed occupational safety shortcomings. In industries facing a shortage of skilled workers, this can directly increase recruiting costs.

Checklist: 5 measures management can implement today

Commission and document a risk assessment — including for office and home-office workplaces (psychological strain has been a mandatory component since 2013, ArbSchG § 5 (3) No. 6)
Anchor the BEM process in writing — invitation template, meeting record template, documentation requirement for every step. Document any refusal by the employee.
Establish an ASA (with more than 20 employees) or anchor an equivalent safety-committee function in smaller companies — involve the company doctor, safety specialist, and works council (if one exists).
Schedule safety briefings on a calendar — annually per employee, immediately for new hazards. Have attendance signed off.
Set up a WHP steering group — even in small companies, a monthly 30-minute meeting with HR and a management representative is enough to steer measures and track metrics (sick-leave rate, BEM rate).

Quick check

What's your company's workplace-health maturity?

Your maturity level shows how far your measures already sit within a structured health promotion process. Under German tax law, such a process is one way for measures to be tax-free up to the allowance of €600 per employee per year (§ 3 No. 34 EStG) — only your tax advisor can confirm this. Answer in about 7 minutes, no sign-up.

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Related measures & topics

Key takeaways

Note: this reflects German law — management is personally liable for occupational safety; delegation does not protect against the supervisory duty (OWiG § 130).
BEM after more than six weeks of sick leave within twelve months is mandatory, regardless of company size.
Missing documentation is a key liability risk — not only the missing measure itself.
Establish an ASA with more than 20 employees — anchor an equivalent safety function in smaller companies.
A WHP steering group makes compliance visible and measurable.

Frequently asked questions

Does the BEM obligation also apply to companies with fewer than 20 employees?+

Yes. SGB IX § 167 (2) does not tie the BEM obligation to a minimum company size. Even a company with 5 employees must offer BEM to anyone who has been unable to work for more than six weeks within twelve months, continuously or repeatedly.

What happens if an employee declines the BEM offer?+

Then the employer has offered BEM — what matters is that the offer and the refusal are documented in writing. The refusal must be voluntary and informed: the employee must have been informed about the purpose, process, and their rights (participation is voluntary; under German law, declining must not be sanctioned).

Can management fully transfer occupational safety duties to the HR director?+

No — full transfer of liability is not possible. Management remains subject to the supervisory duty (OWiG § 130). Effective delegation requires written assignment, sufficient resources, and regular monitoring of the delegated tasks.

What penalties specifically threaten for a missing risk assessment?+

First, the occupational safety authority (trade supervisory office or occupational safety agency) orders the risk assessment to be carried out (ArbSchG § 22 (3)). If this enforceable order is not implemented, a fine of up to €30,000 applies (ArbSchG § 25). Persistent repetition or endangering the life or health of employees is a criminal offence (ArbSchG § 26).

How well is your WHP set up?

The WHP maturity check shows in around 7 minutes whether your compliance foundation is solid — and where the most urgent gaps are.

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Sources

Last updated: 2026-06-24. Not legal or tax advice — have your specific case reviewed by a professional.

BEM Process ExplainedHow does the Workplace Reintegration Management (BEM) process work — step by step?ASA: Requirements & MinutesHow often must the ASA (occupational safety committee) meet — and what has to go into the minutes?Psych Risk Assessment for SMEsDoes a small or mid-sized business (SME) have to conduct a risk assessment for psychological workload?