Many people have been seeking legal action to resolve something that shouldn't be a problem. Withdrawing the FGTS (Severance Indemnity Fund) is a worker's right, provided they meet one of the legal requirements. Let's analyze each of them with you.
Article 20 of Law 8.036 of May 11, 1990, contains all the legal grounds for withdrawal. The fund holder (a person who has an FGTS account, like you or me) must qualify under one of these scenarios.
Art. 20. The worker's linked FGTS account may be accessed in the following situations: / accessing 'here' also includes the withdrawal (lifting) of all or part of the deposited funds.
I - dismissal without just cause, including indirect dismissal, reciprocal fault, and force majeure;
Dismissal without just cause refers to cases where the employee was not at fault. Reciprocal fault occurs when both the employer and the employee are at fault, such as an argument or a disagreement where both sides retaliated. Force majeure is when something beyond the employer's control causes the work to end. In Labor Law, there is no difference between a fortuitous event and force majeure. Therefore, if a storm destroys the company and the employee is dismissed due to force majeure, they are entitled to withdraw the fund.
II - total extinction of the company, closure of any of its establishments, branches or agencies, suppression of part of its activities, declaration of nullity of the employment contract under the conditions of art. 19-A, or the death of the individual employer whenever any of these occurrences imply the termination of the employment contract, proven by a written statement from the company, supplemented, when applicable, by a final judicial decision;(Wording provided by Provisional Measure No. 2.164-41, of 2001)
The subsection above is self-explanatory. If the company closes for any reason that implies the termination of the employment contract, proven by a written statement from the employer—or if that is unavailable, a judicial decision is required—the employee should seek the local labor court (the judge) to request this document.
III - retirement granted by Social Security;
For those retired by Social Security (the well-known INSS), the person must have the document granting the benefit in hand or request it at an INSS service point.
IV - death of the worker, with the balance paid to their dependents, qualified for this purpose before Social Security, according to the criteria adopted for granting death pensions. In the absence of dependents, the successors provided for in civil law shall be entitled to receive the balance of the linked account, indicated by a judicial permit issued at the request of the interested party, regardless of inventory or probate;
In the event of the worker's death, the fund must be paid to their "dependents," i.e., those entitled to a pension following Social Security criteria (a subject we can discuss another time). If there are no dependents, the fund value will become part of the estate, and the same people who are heirs will be entitled to it.
V - payment of part of the installments resulting from housing financing granted within the scope of the Housing Financial System (SFH), provided that:
a) the borrower has at least 3 (three) years of work under the FGTS regime, in the same company or different companies;
b) the blocked amount is used for at least 12 (twelve) months;
c) the discount amount reaches a maximum of 80 (eighty) percent of the installment amount;
One of the most discussed topics is using the FGTS to buy a home. It is worth remembering that, according to the letter of the law, it must fit into "installments resulting from housing financing granted within the scope of the Housing Financial System (SFH)." IN OTHER WORDS, you cannot simply go to CEF (Caixa Econômica Federal) and ask to withdraw the money to buy a house. The fund holder who wishes to use this money to buy a property must first contact CEF to discuss the purchase and explore the possibilities and offers. You must be informed. Having a right does not mean you can do whatever you want with it. (We can discuss the Housing Financial System another time).
Qualification under the SFH is a requirement for the following subsections (hypotheses):
VI - liquidation or extraordinary amortization of the outstanding balance of real estate financing, observing the conditions established by the Curatorial Council, including that the financing is granted within the scope of the SFH and there is a minimum interval of 2 (two) years for each movement;
VII – total or partial payment of the acquisition price of a primary residence, or an urbanized lot of social interest not yet built, observing the following conditions: (Wording provided by Law No. 11.977, of 2009)
a) the borrower must have at least 3 (three) years of work under the FGTS regime, in the same company or different companies;
b) the operation must be financeable under the current conditions for the SFH;
Another common hypothesis is the absence of the fund holder for more than 3 (three) years from any work that contributes to the FGTS, see:
VIII - when the worker remains for three uninterrupted years, starting from June 1, 1990, outside the FGTS regime, in which case the withdrawal may be made starting from the birth month of the account holder. (Wording provided by Law No. 8.678, of 1993)
This is a very common hypothesis. In this case, the worker starts working as a freelancer (e.g., street vendors, laborers, bricklayers, peddlers, people working in artistic production or handicrafts). In these cases, they can withdraw the FGTS provided that the CTPS (Work and Social Security Booklet) is duly filled out, showing the termination of the last job.
IX - normal expiration of a fixed-term contract, including that of temporary workers governed by Law No. 6.019, of January 3, 1974;
This case applies to those hired under the effects of Law 6.019/74. In this case, at the end of the contract, along with the 'settlement,' the worker is entitled to receive the amount related to the FGTS.
X - total suspension of casual labor for a period equal to or greater than 90 (ninety) days, proven by a statement from the union representing the professional category.
This applies to casual workers. A good concept:
According to Social Security (INSS):
A casual worker is someone who provides services to various companies but is hired by unions and labor management agencies. This category includes port workers: stevedores, loaders, vessel moorers, those who clean and maintain vessels, and watchmen. There are also casual workers in the salt extraction industry and in the bagging of cocoa and coffee.
According to the website saberjuridico.com.br: Casual worker: Someone who provides services through the intermediation of a class entity, whose payment is made in the form of a share. Someone who provides services to various employers and performs short-term services. Urban and rural workers have the right to equal rights between workers with permanent employment ties and casual workers (subsections XX to XIV of article 7 of the Federal Constitution). Casual workers, whether unionized or not, shall be entitled annually to a vacation period without prejudice to their respective remuneration. The vacation for casual workers shall be thirty consecutive days, unless the amount of the additional is less than the daily base salary multiplied by thirty, in which case they will enjoy proportional vacation.
If you are a casual worker, you are entitled to withdraw under the conditions mentioned above (subsection X).
XI - when the worker or any of their dependents is affected by malignant neoplasm.(Included by Law No. 8.922, of 1994)
Malignant neoplasm is Cancer. Thus, anyone with this disease, even with the possibility of a cure, is entitled to withdraw the benefit. It is worth remembering that it is not any neoplasm, but only the malignant one. An example of a non-malignant neoplasm, also called benign, is a Lipoma. People diagnosed with a benign neoplasm are not entitled to withdraw the fund.
XII - application in quotas of Mutual Privatization Funds, governed by Law No. 6.385, of December 7, 1976, allowing the maximum use of 50% (fifty percent) of the existing and available balance in their linked FGTS account on the date the option is exercised. (Included by Law No. 9.491, of 1997) (See Decree No. 2.430, 1997)
This is a case of the possibility of investment in specific applications, provided that the specific Law is observed. This is not a withdrawal hypothesis, so it is outside the scope of this article.
XIII - when the worker or any of their dependents is a carrier of the HIV virus;(Included by Provisional Measure No. 2.164-41, of 2001)
A novelty of the law is subsection XIII, for HIV carriers and their dependents. Here it is important to highlight two things. First, it is only necessary to prove a positive test for the virus; it is not necessary to prove that there are uncomfortable symptoms of the disease, the so-called AIDS (Acquired Immunodeficiency Syndrome).
'Dependency' is linked to the person who needs the worker's income and salary to survive. Dependency of a spouse or children under 18 is always presumed. For others who may also need the worker's earnings to survive, it must be proven, which often leads to the need for judicial proof. A fact that will be seen a little further on.
XIV - when the worker or any of their dependents is in the terminal stage due to a serious illness, under the terms of the regulation; (Included by Provisional Measure No. 2.164-41, of 2001)
Apart from cases of Cancer (malignant neoplasm) and HIV, the only legal hypothesis for allowing the withdrawal of the fund is if the worker or any dependent is in a terminal state due to a serious illness, and it says, "under the terms of the regulation," but this regulation was never drafted.
From the interpretation of the subsection, it can be determined that the main requirement is "being in the terminal stage," but it is not enough to be in this state, as it must be due to a "serious illness."
Therefore, if someone is in a terminal state due to a car accident, they are not entitled to the withdrawal.
And if they have a serious illness, they will not be entitled if they are not in the terminal stage.
But what is the terminal stage?
To answer this question, it is necessary to turn to the field of medicine.
In medicine, the terminal stage is that stage where 'no matter the treatment taken, the patient is heading towards death due to the suffering endured, so any measure that can be taken must be aimed at minimizing the patient's suffering as much as possible.
Therefore, it is not enough that the patient is heading towards inevitable death, as every living human is heading towards this same destination. It is necessary that death be caused by a specific ailment, in this case, a "serious illness," and that any treatment performed has the sole objective of avoiding unnecessary suffering.
I have closely followed many people who seek the Justice system to force Caixa Econômica Federal to release the fund holder's money so that they can use it for medical treatment, in hypotheses not covered here. And despite the understandable actions, there is no legal provision for this.
The Legislator (federal deputies and senators) listed each of the hypotheses for withdrawal, and did so exhaustively. Therefore, it is not up to the Judge to determine whether A or B needs this money to pay for medical treatments. And if the judge understands that the fund holder needs the money and orders its withdrawal, CEF "must" appeal the decision to the Courts so that they ensure compliance with the Law.
However, nothing prevents the Legislator from changing the Law, adding or removing hypotheses for withdrawal.
XV - when the worker is seventy years of age or older. (Included by Provisional Measure No. 2.164-41, of 2001)
There is no room for discussion on this hypothesis. If the worker is seventy years of age or older, they may withdraw.
XVI - personal need, whose urgency and gravity arise from a natural disaster, as provided for in the regulation, observing the following conditions: (Included by Law No. 10.878, of 2004)
a) the worker must be a resident in areas proven to be affected in a Municipality or the Federal District in a situation of emergency or state of public calamity, formally recognized by the Federal Government; (Included by Law No. 10.878, of 2004)
b) the request for movement of the linked account will be admitted up to 90 (ninety) days after the publication of the act of recognition, by the Federal Government, of the emergency situation or state of public calamity; and (Included by Law No. 10.878, of 2004)
c) the maximum withdrawal amount from the linked account will be defined in the form of the regulation. (Included by Law No. 10.878, of 2004)
This is a possible hypothesis, and it is already regulated.
Natural disasters are considered to be:
I - gales or storms;
II - very intense gales or extratropical cyclones;
III - extremely intense gales, hurricanes, typhoons, or tropical cyclones;
IV - tornadoes and waterspouts;
V - hail precipitation;
VI - gradual floods or inundations;
VII - flash floods or sudden inundations;
VIII - waterlogging; and
IX - coastal floods caused by the sudden invasion of the sea.
(text of DECREE No. 5.113, OF JUNE 22, 2004. read in full)
Finally, as the last legal hypothesis,
XVII - integration of FI-FGTS quotas, respecting the provisions of item i of subsection XIII of art. 5 of this Law, allowing the maximum use of 30% (thirty percent) of the existing and available balance on the date the option is exercised. (Wording provided by Law No. 12.087, of 2009)
The clarifications already made in subsection XII apply here, which is uninteresting here as it is not exactly a withdrawal hypothesis, but one of investment and movement.
Now the practical way, "procedures to withdraw the money"
Attention, for each hypothesis there is a different list of documents. These documents are established by regulation, and therefore must be presented. In the case of the absence of some of these documents, they must be supplied by a judge. I insist that you do not trust the smooth talk of certain 'lawyers,' a fact that will be discussed more carefully below, for now, the necessary documents. (Click here to see the list of documents required for each case)
Caixa Econômica Federal is prohibited from supplying the absence of any document required by Law. In the absence of any of them, and if it is impossible to obtain it, it will be necessary to go to the judge to obtain 'judicial supply.'
This subject may be treated in more depth at another time.
