Q: An employee has tested positive for COVID-19 and others are exhibiting symptoms. May we require they show proof of a negative COVID-19 test before we permit them to return to work?

A: Yes, according to Aaron Holt, a member of the firm at Cozen O'Connor, "but what we've been telling our clients is that may not be the best approach."

Notably, the U.S. Equal Employment Opportunity Commission (EEOC) has said employers can test on-site employees for COVID-19 as a condition of entering the workplace.

But testing remains difficult to obtain, Holt noted, and it's not always advisable to send someone to a healthcare facility. Instead, Holt said, many employers have adopted a less intrusive approach.

Among other things, employers can implement temperature checks. They're relatively easy to do, he said, but noted that such initiatives are a medical test, regulated by federal law. Typically an employer needs a legitimate, good-faith reason for such an exam, but EEOC has approved temperature screening during the pandemic, provided certain criteria are met.

Employers must, for example, keep medical information separate from other personnel information. As a best practice, Holt said, just don't record worker temperatures. Without records, "it cuts down on some of the red tape," he said, adding that employers may want to use the 100.4 degree reportable illness threshold established by the Centers for Disease Control and Prevention (CDC) and turn away workers over that limit.

Employers also can require that employees be symptom-free for a period of time before returning to work, Holt noted. Because the CDC recommends 14 days, that's what Cozen has been recommending to clients, he said.

It's important, however, to ensure that any such measures are applied evenly. It would be discriminatory, Holt said, to require specific screenings for all employees who are Asian — a group CDC and EEOC have warned employers not to discriminate against. Having a consistent approach is important; an employer could screen anyone who has recently traveled or who lives with someone who is symptomatic, he explained.

Employers also can ask those exposed at work to quarantine, Holt said. While it's important to keep confidential the identity of any employee who tests positive, he said his firm recommends employers clean affected areas and advise those exposed to stay home.