I think you've got to distinguish between testing someone before you employ them, and once they are employed.
If you have no experience with a person, and reasonably want to avoid hiring someone who's going to turn up stoned (especially, as it has been established, for issues of liability), then you can make drug testing a condition.
As for on-going drug testing, no, for the reasons I have previously put forward. That is getting into the realm of one's employer extending control of an employee into what is their time, and their time can be spent doing whatever the hell they want.
EDIT: Unless the drugs negatively affect performance. But that's not a mandate to actually test for drugs. Because that's damn invasive.
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