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

Question	Answer
Are workdays 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 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 — if the employee declines, the procedure ends; the offer and the refusal stay on record
Does the duty 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 it again when a new trigger occurs. No further obligations until the next trigger

How Is the Six-Week 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.

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 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.

Nobody has to run this check by hand: EasyWHP, which offers BGM-Kompass free of charge, counts the days of sickness from the recorded absences and flags a possible BEM case as a precaution from 30 days of sickness within twelve months — before the six weeks are definitely reached. Whether and when the duty applies in an individual case is for specialists to assess. How EasyWHP guides you through BEM →

What Must the BEM Invitation Include?

The German Federal Labor Court (BAG, ruling 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 state what data may be collected and who has access to the results. The law does not prescribe a form; a written invitation is, however, the most reliable proof.

Formal minimum requirements for the invitation: (1) A reference to § 167(2) SGB IX. (2) A statement that participation is voluntary and that declining must not be sanctioned. (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 attend” 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, it is hard to prove in a dispute that BEM was offered or carried out — even if it actually 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 2 AZR 755/13), the BAG has held that BEM is not a formal precondition for the validity of an illness-related termination. An employer who skips it, however, bears an extended burden of presentation and proof that the termination is proportionate. The labor court therefore examines, in every illness-related termination case, whether BEM was properly offered.

A missing BEM shifts the burden of proof: normally, the employee must show that reasonable alternative employment options exist. If the employer did not carry out a BEM, the employer must show and prove that a BEM could not have prevented the termination either — which rarely succeeds in practice. Illness-related terminations without BEM therefore often fail in court.

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 carried out a BEM. The BAG (2 AZR 755/13) held the termination to be disproportionate: the employer had not shown that statutory support or rehabilitation benefits would not have reduced the absences either.

Cost dimension: a lost wrongful-termination lawsuit is expensive — severance or continued employment, legal costs and wages for the duration of the proceedings. The BEM documentation that reduces this risk takes only minutes with consistent digital record-keeping.

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
Ideally a written invitation with five elements: legal basis, voluntary nature, process, data protection, contact person
Without BEM, the employer bears an extended burden of presentation and proof in an illness-related termination (BAG 2 AZR 755/13)
Documenting the response (acceptance or refusal) is just as important as making the offer
The BEM window rolls daily — monthly reviews are not sufficient

Frequently asked questions

Does the six-week deadline also apply to mini-jobbers and temporary staff?+

Yes. § 167(2) SGB IX (German law) applies to all employees, regardless of company size and working hours — including marginally employed workers, part-time employees and fixed-term employees. Civil servants must also be offered BEM (Federal Administrative Court, ruling of June 5, 2014 – 2 C 22.13). The self-employed are not covered.

Must the employer offer BEM anew 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 have elapsed?+

Yes — early contact (“early intervention”) can even be useful. 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?+

Under § 167(2) SGB IX, the employer clarifies BEM with the responsible employee representative body — but the works council is only involved with the consent of the person concerned. The BEM meeting itself is not subject to co-determination: without this consent, the works council does not take part. 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 as long as the records may be needed in legal disputes. A wrongful-termination claim must be filed within three weeks of receiving the notice (§ 4 KSchG); proceedings can drag on, however, and many claims only become time-barred after three years (§ 195 BGB). Set the period in a deletion policy. Since BEM records contain health data (Art. 9 GDPR), they must be actively deleted once this period ends — indefinite retention is not permitted.

Automatically Monitor BEM Deadlines — No More Manual Counting

EasyWHP 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.

Try EasyWHP for Free WHP Compliance Check

Sources

Last updated: 2026-10-15. Not legal or tax advice — have your specific case reviewed by a professional.

BEM and Dismissal ProtectionTermination for Illness Without a BEM Program: What Does the Employer Actually Risk?BEM Process ExplainedHow does the Workplace Reintegration Management (BEM) process work — step by step?WHP Compliance AuditWHP Compliance Audit: How Does the German Labor Inspectorate Check Your Company?Documenting a BEM Refusal VerifiablyWhat do I need to do if an employee refuses the BEM meeting?