When the obligation arises
The duty to offer a BEM (section 167 (2) SGB IX) arises after more than six weeks of incapacity within the last twelve months, counted on a rolling basis. It covers all employees, with or without a disability, regardless of the causes of illness. It also renews itself: after a completed BEM, another six weeks of incapacity within a year trigger the duty again (BAG, judgment of 18 November 2021, 2 AZR 138/21). New absences during an ongoing BEM do not require a parallel second procedure — they are fed into the running process.
An invitation that holds up in court
- state the aims of the BEM in plain words — overcoming the incapacity, preventing new absences, preserving the job,
- point out that participation is voluntary,
- explain the type and scope of the data to be collected and who will have access,
- name the possible participants (works council only with the employee’s consent, representation of severely disabled employees, company doctor) and mention the right to bring a person of trust,
- set a reasonable reply deadline and state that silence will be treated as absence of consent,
- send it in a way you can prove — in practice registered mail plus a reminder if there is no reaction.
Silence without a set deadline is not a refusal, and in court it is the employer who must prove that the invitation arrived. A surprising number of dismissals fail on exactly this point.
The process: from first contact to an action plan
The statute prescribes no fixed procedure — the BEM is an open-ended search process. Six steps have proven themselves: identifying the absence periods, contact and invitation, initial meeting, case discussion, selection of measures, implementation and review. Key rules: keep the information meeting clearly separate from the BEM itself, involve the rehabilitation providers or the Integration Office whenever their benefits may be relevant, consider the full range of measures (workplace adaptation, changed hours or organisation, transfer to a suitable vacant position, gradual return to work, training, benefits from social insurance institutions) and document every step, including options considered and rejected.
Health data and outsourcing
Do not make the start of the BEM conditional on a signed blanket data consent — the Federal Labour Court treats this as the employer’s own procedural breach (judgment of 15 December 2022, 2 AZR 162/22). Keep BEM records in a separate file with restricted access. You may outsource the BEM to an external provider, but its procedural mistakes are attributed to you as your own under section 278 of the Civil Code — in a recent Baden-Württemberg case a dismissal failed because the provider had not explained which health data would be collected (Regional Labour Court, judgment of 14 January 2025, 15 Sa 22/24).
Ending the BEM — even when the employee goes silent
The cleanest ending is consensus: a joint conclusion that the search process is exhausted or should not be continued, documented in a short closing note with a copy for the employee. The employee may also withdraw consent at any time, which ends the BEM immediately. What the employer cannot do, as a rule, is end the search process unilaterally:
„Dagegen kann der Arbeitgeber den Suchprozess grundsätzlich nicht einseitig beenden. Gibt es aus seiner Sicht keine Ansätze mehr für zielführende Präventionsmaßnahmen, ist der Klärungsprozess erst dann als abgeschlossen zu betrachten, wenn auch vom Arbeitnehmer und den übrigen beteiligten Stellen keine ernsthaft weiterzuverfolgenden Ansätze für zielführende Präventionsmaßnahmen aufgezeigt wurden.”
„The employer, by contrast, generally cannot end the search process unilaterally. If, from its point of view, there are no more approaches for effective preventive measures, the clarification process is only to be regarded as completed once the employee and the other participating bodies have also shown no approaches for effective preventive measures worth seriously pursuing.”
Federal Labour Court (BAG), judgment of 18 November 2021, 2 AZR 138/21 — own translation
The same judgment shows the way out of a deadlock: the participants — including the employee — may be given a deadline to name further approaches. In practice a two-letter procedure has proven useful when the employee stops cooperating: first a letter asking whether the BEM should be continued, with a generous deadline and a clear note that silence will be read as lack of interest, then — after the deadline passes without reaction — a second letter recording the end of the procedure. Case law on unilateral termination is not yet settled, so document carefully and assess each case individually.
Waiting period and special cases
During the first six months of employment the Dismissal Protection Act does not yet apply, and the BAG clarified in 2025 that no prevention procedure under section 167 (1) SGB IX is required before a dismissal in that period (judgment of 3 April 2025, 2 AZR 178/24). Whether the BEM duty applies in small businesses is disputed, but the prevailing view says it does.
BEM checklist for employers
- monitor absences on a rolling twelve-month basis,
- use a vetted invitation template: aims, voluntariness, data, participants, reply deadline,
- secure proof of delivery and follow up on silence,
- separate the information meeting from the BEM meeting,
- involve rehabilitation providers where their benefits may be relevant,
- keep a separate BEM file with restricted access,
- document every ending, use the two-letter procedure when the employee goes silent,
- before any illness-related dismissal check: was there a BEM, was it correct, have six new weeks of absence accumulated since it closed.
Frequently asked questions
What is the sanction for a missing BEM?
There is no direct penalty. The consequences hit indirectly: in a dismissal case you must prove that a BEM would have been objectively useless, which almost never succeeds — the dismissal fails as disproportionate.
Can the employee force a BEM?
No, the BAG denies an individual claim (judgment of 7 September 2021, 9 AZR 571/20). The works council and the disabled employees’ representation can, however, demand that you comply.
The employee does not respond — may I close the BEM?
After setting a deadline and warning about the consequences of silence there is a strong case for it. Keep both letters and proof of delivery. Case law is not settled yet, so proceed carefully.
How often must the BEM be repeated?
After every completed procedure the count restarts: another six weeks of incapacity within twelve months triggers the duty again. During an ongoing BEM new absences are simply fed into it.
Can I outsource the BEM?
Yes, but the provider’s mistakes are attributed to you under section 278 of the Civil Code. Vet its templates and its handling of the procedure.
Does the employee’s refusal protect me?
With a proper invitation, yes — the omission is then neutral for a later dismissal. New periods of illness trigger the duty to invite again.
Based on section 167 SGB IX and the case law of the Federal Labour Court: judgments of 18 November 2021 (2 AZR 138/21), 15 December 2022 (2 AZR 162/22), 7 September 2021 (9 AZR 571/20), 3 April 2025 (2 AZR 178/24) and 20 November 2014 (2 AZR 755/13), as well as the Baden-Württemberg Regional Labour Court, judgment of 14 January 2025 (15 Sa 22/24). Legal status: July 2026. This article is for information purposes and does not replace legal advice in an individual case.