What Duty of Care Should an Employer Show if You are Absent with Stress? (A guide)

In this brief guide, we will look at what duty of care an employer should show if you are absent with stress, as well as other related queries about taking leaves due to stress.

What Duty of Care Should an Employer Show if You are Absent with Stress?

Employers have a duty of care if you are absent with care which involves making reasonable adjustments to the work or workplace where an employee is feeling stress, and situations that are having a substantial and adverse effect on their ability to carry out normal day-to-day activities.

The employer’s duty of care towards an employee absent with stress or even combating stress while still at work involves recognizing the effect of stress is long-term and the condition is likely to recur unless concrete steps are taken to minimizing the employee’s situation.

The employer’s duty of care should be to believe and act according to the fact that stress cannot be ignored and that they should be able to place a formal stress policy and make sure that any stress-related complaints made must be treated seriously and investigated fully.

The employer’s duty of care towards an employee absent with or dealing with stress also involves them to take appropriate action at once and engage in active intervention when required. 

The employer also has a duty to monitor the situation to see if the remedial action is working and continue to do so until the situation is resolved.

Other significant duties of care the employer must show when an employee is suffering from stress include agreeing to an action plan with the employee concerned.

There is case law that suggests that an employer needs to offer a confidential advice service to employees suffering from stress, with referral to appropriate counselling or treatment services, and these make up parts of their duty of care towards the employee absent with stress.

The employer’s duty of care towards the employee also says that they need to take reasonable steps at the same time to alleviate the problem, for example by reducing that person’s workload or making changes to the way they work.

Anxiety at Work: Your Rights

If you are experiencing anxiety at work you need to be aware of certain rights, because far too many people go on working and running themselves ragged till their anxiety gets the better of them and they have a nervous breakdown.

Anxiety at work can either be caused by the work or it could be maintained by it, but either way, there are cases in which getting off work can cause a significant change in the experience of anxiety.

Here are some of your workplace rights if you are suffering from anxiety or any other mental health conditions, according to the U.S. Equal Employment Opportunity Commission:

“You are protected against discrimination and harassment at work because of your condition, you have workplace privacy rights, and you may have a legal right to get reasonable accommodations that can help you perform and keep your job.

It is illegal for an employer to discriminate against you simply because you have a mental health condition. This includes firing you, rejecting you for a job or promotion, or forcing you to take leave.

An employer doesn’t have to hire or keep people in jobs they can’t perform, or employ people who pose a “direct threat” to safety (a significant risk of substantial harm to self or others). But an employer cannot rely on myths or stereotypes about your mental health condition when deciding whether you can perform a job or whether you pose a safety risk.”

You have a right to privacy.

“An employer is only allowed to ask medical questions (including questions about mental health) in four situations:

  • When you ask for a reasonable accommodation
  • After it has made you a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case you may choose whether to respond.
  • On the job, when there is objective evidence that you may be unable to do your job or that you may pose a safety risk because of your condition.

You may have a legal right to a reasonable accommodation that would help you do your job. A reasonable accommodation is some type of change in the way things are normally done at work.

Your condition does not need to be permanent or severe to be “substantially limiting.”  It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when the symptoms are present

If you can’t perform all the essential functions of your job to normal standards and have no paid leave available, you still may be entitled to unpaid leave as a reasonable accommodation if that leave will help you get to a point where you can perform those functions. You may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. More information about this law can be found at www.dol.gov/whd/fmla.

The Equal Employment Opportunity Commission (EEOC) can help you decide what to do next, and conduct an investigation if you decide to file a charge of discrimination. Because you must file a charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is also covered by a state or local employment discrimination law), it is best to begin the process early.”

Sick Leave due to Stress or Stress Leave

Sick leave due to stress, or stress leave, refers to any time off that may be paid or unpaid, that is taken specifically because the person is suffering from work related stress and taking time off might help them.

For taking time off because of stress you will first need to talk to a doctor about your symptoms and about how your job is affecting you, and after you have done so, you may be given a sick note, which you can then provide to your employer along with a formal letter.

Another thing to do before you hand in an official letter is to talk to your employer, because in some cases it can help to just talk to them and see if they can change things around to help with your stress without you having to take leave.

These duties of the employer to look after the employee’s stress or health fall under their duty of care towards the employee, so you are within your rights to ask for time off.

Signs and Symptoms of Stress: When to take Stress Leave?

You should know the signs and symptoms of stress so you know when it might be time to take a stress leave.

Some symptoms of stress include:

  • Gastric or digestive problems
  • Feeling weird or uncomfortable
  • Frequent anger outbursts
  • Aggressiveness
  • Fighting with people 
  • Snapping at people
  • Irritability 
  • Distractedness
  • Decreased work/academic performance
  • More complaints and grievances
  • Trying to take more time off work or general activities
  • Being twitchy or nervous
  • Mood swings
  • Being withdrawn
  • Loss of motivation, commitment and confidence
  • Increased emotional reactions – being more tearful, sensitive or aggressiv
  • Frequent colds, coughs and infections
  • Complaining of aches and pains

Common treatment plans for stress usually include meditation, relaxation or biofeedback, and you should look into them with your doctor if you are under too much stress.


In this brief guide, we looked at what duty of care an employer should show if you are absent with stress, as well as other related queries about taking leaves due to stress.

Stress is becoming a huge reason why people take time off work, and most employers are becoming more and more aware of what they need to be doing for their employees if they are suffering from severe stress.

If you are suffering from stress your employer may have a certain duty of care towards you, sure, but you also need to make sure that you are doing all that you can to take care of yourself as well.

If you’re facing this, it may be a good idea to seek the help of a therapist or other mental health professional. You can find a therapist at BetterHelp who can help you learn how to cope and address it.

If you have any questions or comments about what duty of care your employer should show if you are absent with stress, please feel free to reach out to us.

Frequently Asked Questions (FAQs): What Duty of Care Should an Employer Show if You are Absent with Stress?

What to do when an employee says they are stressed?

When an employee says they are stressed, you need to treat them with empathy and kindness, and here are some other things you can do:

Give some recognition for their work and stress. 
Respect that they need time away and let them have it. 
Allow them to take their time off properly, without work.
Reduce the frequency of your meetings.
Match your employees based on their skills so that workload lessens a little
Be realistic and practical about your expectations.

Can my employer contact me when I am off with stress?

Yes, your employer can contact you if you are off with stress, but you can still let them know politely that they are not helping your cause if they start doing it far too often and it starts hurting you in some way.

Being able to contact an employee when they are off with stress if usually considered fair and appropriate absence management and some agencies also say that it can even be somewhat beneficial to the employee so that they do not feel isolated or ignored. 

How do I know if I need stress leave?

To know if you need stress leave you first need to make an appointment with your doctor for your symptoms and get their opinion on how much being away from work will help.

You need to tell the doctor about your work conditions in detail, tell them about any recent changes in your sleep, diet or mental state.
Usually, for any stress that is either stemming from or being maintained by factors in the workplace, your doctor may prescribe stress leave for a few days.

What is my employer’s duty of care?

An employer’s duty of care refers to a non-delegable duty which means an employer cannot delegate that duty to someone else and this duty of care requires the employer to always be responsible for the safety of their employees. 

The employer has a duty only to take “reasonable care” so that foreseeable risk of injury can be avoided, but it does not mean that the employer has to be on the lookout for every employee’s safety all the time.




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