BEM 42-Day Deadline
BEM starting at 42 days: When exactly must the employer offer the meeting?
After 42 cumulative working days of absence within the preceding 12 months, the employer must offer the employee a BEM meeting (§167(2) SGB IX, German law). The obligation arises once the threshold is exceeded — not at the end of the month.
BEM 42-Day Rule: Frequently Asked Questions and Answers
| Question | Answer |
|---|---|
| Are working days or calendar days counted? | Working days (actual working days per the employment contract, excluding weekends/holidays) |
| 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 — 42 days due to a single illness are sufficient (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 42-day 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.
Working days are counted — not calendar days. Someone who works Monday through Friday has 5 potential absence days per week. For a 4-day workweek, it's 4 accordingly. Part-time employees are counted based on their contractually agreed working days.
Example: An employee was sick for 10 days in September, 15 days in November, 12 days in February, and 8 days in March — totaling 45 cumulative working days within 12 months. The BEM obligation is triggered as soon as day 43 is reached, not at the end of the quarter or at the next HR reporting date.
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 7 AZR 698/14) has set concrete requirements for the BEM invitation: it must be in writing, 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 7 AZR 698/14), 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.
Case example: An employee was sick for 387 days over 3 years. The employer issued an illness-related termination — without ever having offered a BEM. The Federal Labor Court (7 AZR 698/14) ruled the termination invalid. The employer could not prove that BEM would not have prevented the termination.
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
- 42 cumulative working days within 12 months = obligation to offer BEM — must be monitored daily
- 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 7 AZR 698/14)
- 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 42-day 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 42 days are reached again within a new observation period, the employer must extend the invitation again.
Can BEM be offered before the 42 days 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 automatically detects the 42-day threshold every day, generates BEM invitations from templates, and documents every step in a traceable way.
Sources
- §167 Abs. 2 SGB IX — Betriebliches Eingliederungsmanagement ↗
- BAG-Urteil 7 AZR 698/14 (19.05.2016) — Krankheitsbedingte Kündigung bei fehlendem BEM ↗
- BAG-Urteil 2 AZR 716/06 — Grundsatzurteil BEM-Pflicht ↗
- BMAS — Handlungsleitfaden BEM ↗
- BAuA — Leitfaden BEM für Arbeitgeber ↗
Last updated: 2026-06-27. This guide refers to German law (§ 167 SGB IX) and is not legal advice — have your specific case reviewed by a professional.