BEM deadline: six weeks
BEM after more than six weeks of incapacity for work: When must the employer offer the meeting?
If an employee has been unable to work, or partly unable to work, for more than six weeks within one year, either continuously or repeatedly, the employer must offer them a BEM meeting (§167(2) SGB IX, German law). Whether the six weeks are counted in calendar days or in working days has not been settled by the highest courts; checking early and offering early, as a precaution, does no harm. The obligation arises once the threshold is exceeded — not at the end of the month.
BEM Obligation After More Than Six Weeks of Incapacity: Frequently Asked Questions and Answers
| Question | Answer |
|---|---|
| Are working days or calendar days counted? | Open question: the law says “more than six weeks” and names no number of days. Whether calendar days or working days count has not been settled by the highest courts — if in doubt, offer BEM early as a precaution |
| Do all absences add up together? | Yes — all illness-related absences within the 12-month window are cumulative, regardless of the underlying condition |
| When does the 12-month window start? | Rolling: always the most recent 12 months counted back from the current date |
| Must I offer BEM, or is offering it merely optional? | Actively offer it and document it — an employee's refusal releases the employer from holding the meeting, not from documenting the offer |
| Does the obligation also apply to a single long illness? | Yes — a single illness lasting more than six weeks without interruption also triggers the obligation (e.g., accident, surgery) |
| What if the employee declines? | Document it (invitation + response), and offer again after a new trigger. No further obligations until the next threshold is triggered |
How is the six-week threshold calculated correctly?
This guide describes German employment law (SGB IX) and applies to employment relationships in Germany. The calculation is cumulative over a rolling 12-month window. This means all illness-related absences from the past 12 months are added together — regardless of how many different illnesses were involved or whether the absences are related. Absences older than 12 months fall out of the window.
What matters is the wording of §167(2) SGB IX (German law): employees who, within one year, have been unable to work, or partly unable to work, for more than six weeks, either continuously or repeatedly. The law does not name a number of days — even though people often speak of the “42-day deadline”. Whether the six weeks are measured in calendar days or in working days — and how part-time work or a 4-day week should be treated — has not been settled by the highest courts. For one continuous illness the difference is small; with many short absences it can decide whether the threshold has already been reached. Checking early and offering BEM early, as a precaution, does no harm — failing to offer it does.
Example: An employee was sick for 10 days in September, 15 days in November, 12 days in February, and 8 days in March — 45 days of sickness within 12 months, which is more than six weeks. BEM must be offered now at the latest — not at the end of the quarter or at the next HR reporting date. Because the counting method is open, it pays to check as soon as someone approaches the threshold.
Important: The obligation arises the moment the threshold is exceeded — immediately, not with delay. In practice, this means systems must check daily, not monthly. Employers who only evaluate once per quarter regularly miss the obligation to extend the invitation.
What must the BEM invitation include?
The Federal Labor Court (BAG, case 2 AZR 755/13) has set concrete requirements for the BEM invitation: it must explain the purpose of BEM (preserving the job, overcoming the incapacity to work), and point out the employee's right to decline participation. The invitation must also disclose what data may be collected and who has access to the results.
Minimum formal requirements for the invitation: (1) Reference to §167(2) SGB IX. (2) Voluntary participation and no adverse consequences for declining. (3) A description of the BEM procedure (participants, process, goal). (4) A data protection notice (what data, who has access, retention periods). (5) Naming of the designated BEM contact person.
What the invitation must not contain: any suggestion that non-participation carries negative consequences. BEM is not a monitoring instrument — it is a support offer. Phrasing such as 'you must appear' or 'we expect your participation' makes the BEM process legally vulnerable.
The employee's response to the invitation must be documented: acceptance plus a meeting record, or refusal plus the date and manner of refusal (written/verbal). Without this documentation, the BEM is considered not to have been carried out — even if it factually took place.
What are the legal consequences of a missing BEM?
In settled case law (since its ruling of July 12, 2007, case 2 AZR 716/06, reaffirmed by 2 AZR 755/13), the Federal Labor Court has held that a termination for illness-related reasons is disproportionate if no BEM was carried out or offered beforehand. The labor court reviews whether BEM was properly offered in every illness-related termination case.
A missing BEM shifts the burden of proof: normally, the employee must prove that reasonable alternative employment options exist. If the employer did not carry out a BEM, the employer must prove that BEM would not have made a difference — which is practically almost impossible to prove. The result: the termination becomes invalid.
The case behind the ruling: an employee had been unable to work for more than six weeks in each of the three years before the termination. The employer issued an illness-related termination without having conducted a BEM. The Federal Labor Court (2 AZR 755/13) held the termination disproportionate. The employer had not shown that statutory support or benefits from the rehabilitation agencies would not have reduced the absences either.
Cost dimension: A lost wrongful-termination lawsuit typically costs €10,000–30,000 (severance pay, legal costs, and continued wage payments during proceedings). The BEM documentation that would have prevented this process takes — with consistent digital recording — mere minutes.
Related measures & topics
Key takeaways
- More than six weeks of incapacity for work within 12 months (continuously or repeatedly) = obligation to offer BEM under German law — the counting method is not settled, so monitor daily and check early
- Written invitation with 5 mandatory elements: legal basis, voluntariness, process, data protection, contact person
- A missing BEM makes an illness-related termination invalid (Federal Labor Court, case 2 AZR 755/13)
- Documenting the employee's response (acceptance or refusal) is just as mandatory as making the offer
- The BEM window rolls daily — monthly evaluations are not sufficient
Frequently asked questions
Does the six-week deadline also apply to mini-jobbers and temporary staff?+
Yes. §167 SGB IX applies to all employees in a social-insurance-covered employment relationship, including marginally employed workers, part-time employees, and fixed-term employees. The only exception: civil servants (Beamte) and self-employed individuals are not covered by SGB IX.
Must the employer offer BEM again every year?+
Yes — if the absence threshold is exceeded again within a new 12-month window. The 12-month window rolls continuously. If BEM was offered last year and the employee declined: as soon as more than six weeks of incapacity for work are reached again within a new observation period, the employer must extend the invitation again.
Can BEM be offered before the six weeks are reached?+
Yes — the early-warning system (early intervention) even recommends earlier contact. Offering it before the mandatory threshold is reached is voluntary and demonstrates the employer's duty of care. However, it does not replace the formal BEM under §167 SGB IX if the threshold is later reached — the formal process, with all its documentation requirements, must still be carried out in addition.
What happens if the works council is not involved in the BEM?+
§167(2) SGB IX requires that the works council be involved at the employee's request. However, the BEM meeting itself is not subject to co-determination — the works council has no right to forced participation without the employee's request. Companies with a works council should nonetheless regulate the BEM process in a works agreement (process, data protection, participants).
How long must BEM records be retained?+
For the duration of the employment relationship and beyond, for the period during which wrongful-termination lawsuits remain possible (3 years under the §4 KSchG filing deadline, calculated from the date of termination or departure). Tip: since BEM records contain health data (Art. 9 GDPR), they must be actively deleted after this period — indefinite retention is not permitted.
Automatically monitor BEM deadlines — no more manual counting
EasyBGM flags BEM candidates early as a precaution — from 30 days of sickness within 12 months, with weekends inside a sick note counted — creates BEM invitations from templates, and documents every step traceably.
Sources
- §167 Abs. 2 SGB IX — Betriebliches Eingliederungsmanagement ↗
- BAG-Urteil 2 AZR 755/13 (20.11.2014) — Krankheitsbedingte Kündigung bei fehlendem BEM ↗
- BAG-Urteil 2 AZR 716/06 — Grundsatzurteil BEM-Pflicht ↗
- BMAS — Handlungsleitfaden BEM ↗
- BAuA — Leitfaden BEM für Arbeitgeber ↗
Last updated: 2026-10-15. This guide refers to German law (§ 167 SGB IX) and is not legal advice — have your specific case reviewed by a professional.