BEM 42-Day Deadline
BEM After 42 Days: When Exactly Must the Employer Offer the Meeting?
Under German law, employers must offer a BEM meeting once cumulative sick-leave workdays reach 42 within the trailing 12 months (§167 para. 2 SGB IX). The duty arises the moment the threshold is crossed — not at month-end.
The BEM 42-Day Rule: Frequently Asked Questions
| Question | Answer |
|---|---|
| Are workdays or calendar days counted? | Workdays (actual working days per the employment contract, not weekends/holidays) |
| Do all absences count together? | Yes — all illness-related absences within the 12-month window are counted cumulatively, regardless of the diagnosis |
| When does the 12-month window begin? | Rolling: always the trailing 12 months counted back from the current date |
| Must I offer BEM, or just be able to offer it? | You must actively offer it and document it — an employee's refusal releases you from the offer, not from the documentation |
| Does the duty also apply to a single long illness? | Yes — 42 days due to a single illness are sufficient (e.g., an accident or surgery) |
| What if the employee declines? | Document it (invitation + response), and offer it again when a new trigger occurs. No further obligations until the next trigger |
How Is the 42-Day Threshold Calculated Correctly?
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 diagnoses were involved or whether the absences are related. Absences older than 12 months drop out of the window.
Workdays are counted — not calendar days. Someone working Monday through Friday has 5 potential absence days per week; with a 4-day week, it's 4. 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 — 45 cumulative workdays within 12 months. The BEM duty is triggered as soon as day 43 is reached — not at the end of the quarter or the next HR review date.
Important: The duty arises the moment the threshold is crossed — immediately, not with a delay. In practice, this means systems must check daily, not monthly. Anyone who only reviews absences once a quarter will routinely miss the obligation to invite the employee.
What Must the BEM Invitation Include?
The German Federal Labor Court (BAG, ruling 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 state what data may be collected and who has access to the results.
Formal minimum requirements for the invitation: (1) A reference to §167 para. 2 SGB IX. (2) Confirmation that participation is voluntary and that declining carries no consequences. (3) A description of the BEM process (participants, procedure, goal). (4) A data protection notice (what data, who has access, retention periods). (5) The name 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 tool — it is an offer of support. Phrasing such as 'you must appear' or 'we expect your participation' makes the BEM process legally vulnerable.
The response to the invitation must be documented: acceptance plus a meeting record, or refusal plus the date and form 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 its established case law (since the ruling of July 12, 2007, 2 AZR 716/06, reaffirmed by 7 AZR 698/14), the BAG has held that a termination for illness-related reasons is disproportionate if no BEM was carried out or offered beforehand. The labor court examines, in every illness-related termination case, whether BEM was properly offered.
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 in practice: an employee was sick for 387 days over 3 years. The employer issued an illness-related termination — without ever having offered a BEM. The BAG (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 plus legal costs plus continued wages during proceedings). The BEM documentation that would have prevented this lawsuit costs — with consistent digital record-keeping — only minutes.
Related measures & topics
Key takeaways
- 42 cumulative workdays within 12 months = an employer's duty under German law to offer BEM — track this daily
- A written invitation with 5 mandatory elements: legal basis, voluntary nature, process, data protection, contact person
- A missing BEM renders an illness-related termination invalid (BAG 7 AZR 698/14)
- Documenting the response (acceptance or refusal) is just as mandatory as making the offer
- The BEM window rolls daily — monthly reviews 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-liable employment relationship in Germany, including marginally employed workers, part-time employees, and fixed-term employees. The only exception: civil servants and the self-employed do not fall under the SGB IX.
Must the employer offer BEM anew every year?+
Yes — whenever the absence threshold is crossed again within a new 12-month window. The 12-month window rolls continuously. If BEM was offered last year and the employee declined, a new invitation is required as soon as 42 days are reached again within a new review period.
Can BEM be offered before the 42 days have elapsed?+
Yes — early-warning approaches (early intervention) even recommend making contact sooner. Offering BEM before reaching the mandatory threshold 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 anyway — the formal process, with all its documentation requirements, must still take place in addition.
What happens if the works council is not involved in BEM?+
§167 para. 2 SGB IX requires that the works council be involved if the employee requests it. The BEM meeting itself, however, is not subject to mandatory co-determination — the works council has no right to forced participation without the employee's request. Companies with a works council should nonetheless govern the BEM process in a works agreement (procedure, data protection, participants).
How long must BEM records be retained?+
For the duration of the employment relationship and beyond, for the period during which a wrongful-termination lawsuit could be filed (3 years, per the §4 KSchG filing deadline, counted from 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.
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Sources
- §167 para. 2 SGB IX — Betriebliches Eingliederungsmanagement (BEM) ↗
- BAG Ruling 7 AZR 698/14 (May 19, 2016) — Illness-Related Termination With No BEM ↗
- BAG Ruling 2 AZR 716/06 — Landmark Ruling on the BEM Duty ↗
- BMAS — BEM Guidance Handbook ↗
- BAuA — BEM Guide for Employers ↗
Last updated: 2026-06-27. Not legal or tax advice — have your specific case reviewed by a professional.