How is he still on the air?
He will not be soon.
With the record of his ratings collapsing again for the second time ABC will have the reason to cancel his show.
Then Kimmel will not have any basis to sue them.
I suspect the ABC lawyers told the Execs that this would be better for them long term. Put him back on TV and let him fail again. Then cancel the show. At worst pay him to GO AWAY. It will be cheaper than having to pay out his contract.