It is only a matter of time before the Genetic Information Nondiscrimination Act emerges as a litigation risk for employers.

GINA, which was signed into law by President George W. Bush in May 2008, protects individuals against discrimination by employers and health insurers based on their genetic information.

According to the latest report by the U.S. Equal Employment Opportunity Commission, the number of GINA charges already is increasing. They grew to 280 complaints in fiscal year 2012, a 14.3% increase from the comparable period a year ago, although they still account for only 0.3% of the total charges filed. Observers say little litigation has been filed under the law to date.

“I don't know whether this is because there aren't any violations, or whether it's because the plaintiffs bar really hasn't gotten up to speed on the law,” said Robin E. Shea, a partner with law firm Constangy, Brooks & Smith L.L.P. in Winston-Salem, N.C.

“Plaintiffs lawyers haven't yet figured out what to do” with GINA, said Gregg Lemley, a shareholder with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis.

GINA “is a bit of a sleeper issue,” said Jeffrey I. Pasek, a Philadelphia-based member of law firm Cozen O'Connor. “Employers are hesitant to get into requesting genetic information” except incidentally, such as through their Family and Medical Leave Act or accommodation leave processes, or perhaps through workers compensation, he said.

Mr. Pasek said he anticipates cases in which an employee brings an Americans with Disabilities Act, FMLA or workers comp retaliation claim and decides to include a GINA claim as well.

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David Gevertz, a partner with law firm Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta, said that while GINA “hasn't exploded” as an issue so far, “it's slowly making its way through the system.”

Mr. Gevertz said the issue is a potential risk particularly within the health care industry, where “employers tend to ask questions about infectious diseases, and are dealing with all kinds of preventative health care for their employees, given the sick population that they deal with.”

Mr. Lemley said one area of concern could be the pre-employment medical exam. Many employers require pre-employment medical exams, but do not communicate to the physicians that it is necessary to remove from their forms standard questions about family medical history, which technically violate GINA, he said.

Michael A. Kalish, New York-based member of law firm Epstein Becker & Green P.C., said he would expect more litigation as more plaintiff employment lawyers look over “their potential tools.”

Jeremy Gruber, president and executive director of the Cambridge, Mass.-based Council for Responsible Genetics said it also has taken time for litigation associated with other civil rights legislation, including the Americans with Disabilities Act, to unfold.

However, Mr. Lemley said: “In most contexts where GINA is going to arise, there are going to be limited damages and limited ability to prove damages,” to the extent it becomes attractive to the plaintiffs bar.